IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 CRL.A.No. 1204 of 2006() ------------------------ (SC.580/2004 of ADDL.SESSIONS COURT (ADHOC)III, THIRUVANANTHAPURAM) .................... APPELLANT/ACCUSED NO.2 --------------------------------------------- SOJ, S/O. KAMALOLBHAVAN, VILAYIL VEEDU, EDAVANAKONAM, VEILAILOOR, THIRUVANANTHAPURAM. BY ADVS. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RI.DELVIN JACOB MATHEWS RESPONDENT/COMPLAINANT --------------------------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2011, ALONG WITH CRA NO. 1429 OF 2006 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK “C.R.” J.CHELAMESWAR, C.J., THOMAS P. JOSEPH & P.R.RAMACHANDRA MENON, JJ. -------------------------------------- Crl.Appeal Nos.1204 of 2006 & 1429 of 2006 -------------------------------------- Dated this the 7th day of December, 2010. ORDER Thomas P.Joseph, J. “Is authorship of concealment sine qua non to make information received from a person accused of any offence in the custody of a Police Officer admissible under Section 27 of the Evidence Act (for short, “the Act”)? Will such information which is otherwise admissible become inadmissible solely for the reason that such information does not reveal authorship of concealment?” This is the question referred to us for a decision in view of the conflicting decisions of the Division Benches of this Court. 2. The question arose in two criminal appeals arising from conviction of appellants for offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code and sentence to undergo imprisonment for life and payment of fine. The case is that on 03.04.2002 at or by about 9.15 p.m. appellants along with another (who was acquitted by the trial court) in furtherance of their Crl.A.Nos.1204/2006 & 1429/2006 2 common intention caused death of one Rajan. Prosecution relied on circumstantial evidence to bring home guilt of the appellants. One of the circumstances was the alleged recovery of weapons said to be used by the appellants for commission of the crime and the blood stained clothes of one of the appellants on the information given by them. Information given by the appellants to the Investigating Officer is said to have led him to the place wherefrom the incriminating objects were allegedly recovered. The Investigating Officer prepared mahazars for recovery of the said objects and in the course of evidence deposed to the fact discovered and the information given by the appellants. Information given by the appellants which led to the discovery of fact as deposed to by the Investigating Officer did not contain authorship of concealment of the objects. Learned counsel for appellants contended before the Division Bench that evidence of the Investigating Officer regarding recovery of incriminating objects cannot be admitted in evidence under Sec.27 of the Act since authorship of concealment of the incriminating object is not deposed to. Learned Public Prosecutor contended that authorship of concealment is not sine qua non for admissibility of the evidence regarding recovery under Sec.27 of the Act. 3. Both sides relied on various decisions on the point. The Division Bench though, was of the opinion that authorship of concealment is not sine qua non for admissibility of evidence under Sec. 27 of the Act found apparent conflict between decisions of this Court on the question and felt that the question has to be decided by a larger bench. Accordingly the Division Bench by order dated March 30, 2010 has referred the question for a decision. Crl.A.Nos.1204/2006 & 1429/2006 3 4. Learned counsel for appellants contended that authorship of concealment is sine qua non to bring the information given by the accused within the mischief of Sec.27 of the Act. Learned counsel relied on the decisions in Jaffer Husain Dastagir v. The State of Maharashtra (AIR 1970 SC 1934), Pohalya Motya Valvi v. State of Maharashtra (AIR 1979 SC 1949), Dudh Nath Pandey v. State of U.P. (AIR 1981 SC 911), State of U.P. v. Jageshwar and others (AIR 1983 SC 349) , Fr. George Cherian and others v. State of Kerala (ILR 1989 (2) Kerala 95), George v. State (2005 (3) KLJ 593), Sankara Narayanan v. State of Kerala (2006 (3) KLT 429), Radhakrishnan v. Circle Inspector of Police (2009 (1) KLD 690) and Rijo v. State of Kerala (ILR 2009 (4) Kerala 730). 5. Learned Public Prosecutor on the other hand argued that authorship of concealment is not an absolute necessity to bring the information given by the accused within the scope of Sec. 27 of the Act . He cited the decisions in State of Maharashtra v. Suresh ([2000] 1 SCC 471), State of Karnataka v. David Rozario (2002 SCC (Cri) 1852), Amitsingh Bhikamsingh Thakur v. State of Maharashtra ((2007) 2 SCC 310) and V.Venugopal v. State of Kerala (2007 (2) KHC 649). 6. In Fr. George Cherian and others v. State of Kerala (ILR 1989 (2) Kerala 95) the accused had stated to the Investigating Officer that “the Crl.A.Nos.1204/2006 & 1429/2006 4 gold and the gold rings might be in the possession of either Krishnankutty or Kunju Kunju”. The Division Bench held that statement of the accused was inadmissible under Sec.27 of the Act. However the learned Judges observed: “…………It is clear that what is admissible under Section 27 is not merely the knowledge of the accused regarding the place of concealment of the material object, but his knowledge of the same emerging from the admission that he himself has concealed it there with the exclusion of the knowledge of others……” Learned Judges placed reliance on the decisions in Mahabir Mandal v. State of Bihar ((1972) 3 SCR 639), Himachal Pradesh Administration v. Om Prakash (1972 Cri.L.J. 606), Mohmed Inayatullah v. The State of Maharashtra (1976 SCC (Cri.) 199 = AIR 1976 SC 483), Pohalya Motya Valvi v. State of Maharashtra (supra) and State of U.P. v. Jageshwar and others (supra). In Abdul Salam v. State of Kerala (1994 (1) KLT SN.No.11) a Division Bench of this Court held that in the absence of authorship of concealment information given by the accused is not admissible under Sec.27 of the Act and that authorship of concealment cannot be inferred by implication. In George v. State (2005 (3) KLJ 593) another Division Bench of this Court noted that one of the primary requisites to make a recovery in pursuance of Crl.A.Nos.1204/2006 & 1429/2006 5 confession made by the accused admissible under Sec.27 of the Act is that authorship of concealment of the articles must be proved. The Division Bench expressed inability to follow the decisions in State of Maharashtra v. Suresh ((2000) 1 SCC 471) and State of Karnataka v. David Rozario (2002 SCC[Cri.] 1852) as those decisions were rendered by Benches of two Judges, while according to the Division Bench, Jaffer Husain Dastagir v. State of Maharashtra and Mahabir Biswas v. State of W.B. decided by larger benches took the view that authorship of concealment is an essential requirement of Sec.27 of the Act. Further again, in Sankara Narayanan v. State of Kerala, Radhakrishnan v. Circle Inspector of Police and Rijo v. State of Kerala other Division Benches also took the same view. 7. But, another Division Bench of this Court in V.Venugopal v. State of Kerala held, relying on the decision in Amitsingh Bhikamsingh Thakur v. State of Maharashtra ((2007) 2 SCC 310) that fact discovered for the purpose of Sec. 27 of the Act is not restricted to the physical object and that knowledge of the accused in relation to the place of concealment of weapon is a relevant fact and is an incriminating circumstance against the accused. 8. When the Act was enacted in the year 1872, the Legislature had no doubt that a confession made by an accused to a Police Officer or made by an accused to anyone whilst in custody of the Police shall not be admitted in evidence. The only departure for that rigour is when such confession is made in the immediate presence of a Magistrate. However, the Legislature thought it fit Crl.A.Nos.1204/2006 & 1429/2006 6 to make one more departure from the rigour of the above ban that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence while in the custody of a Police Officer, so much of the information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved against the accused. Accordingly they enacted Sec.27 in the form of a proviso to Secs. 25 and 26 of the Act. Sec.27 of the Act reads: “27. How much of information received from accused may be proved.-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.” Various interpretations were given from time to time to the said provision and as to the extent of its admissibility in evidence. Initially it was thought that though the expression “fact” as defined by Sec. 3 of the Act included 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, it is in the former sense that the expression “fact” is used in Sec. 27 of the Act and that the phrase “fact discovered” used in Sec.27 referred to a material and not a mental fact. (See the opinion expressed by Shadi Lal, C.J. in Sukhan v. Emperor – AIR Crl.A.Nos.1204/2006 & 1429/2006 7 1929 Lahore 344). Learned Chief Justice opined that the fact discovered may be stolen property, the instrument of crime, the corps of the person murdered or any material thing; or, it may be a material thing in relation of the place or locality where it was found. 9. The Privy Council in Pulukuri Kottaya and others v. Emperor (AIR 1947 Privy Council 67) held: “……….. it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. ............”. Crl.A.Nos.1204/2006 & 1429/2006 8 10. The expression “fact” is defined in Sec.3 of the Act as under: “Fact” means and includes – (1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. In Pulukuri Kottaya their Lordships were of the view that 'fact' discovered embraces (not only the object discovered but also) the place from which the object is produced and the knowledge of the accused as to that (ie. the fact of concealment) but the information given (by the accused) must relate distinctly to that fact. Their Lordships illustrated the situation in the following words: “Information supplied by a person in custody that ‘I will produce a knife concealed in the house’ does not lead to the discovery of a knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, fact discovered is relevant.” The expression that ‘knives were discovered many years ago’ was used not in the sense that in the reported case knives involved in the incident were discovered earlier. Their Lordships were pointing out that discovery of knives was not in consequence to the information given by the accused that ‘I will produce a knife concealed in the roof of my house’, because, even before the Crl.A.Nos.1204/2006 & 1429/2006 9 accused gave that information, knives had been discovered and were in vogue. What was discovered by the information given by the accused was that a knife was concealed in the roof of house of the informant to his knowledge. If the knife was proved to have been used in the commission of the crime the fact discovered was very relevant. In otherwords, the fact discovered was not merely the object but also the place where it was kept concealed and the knowledge of the accused as to such concealment. Their Lordships held that the condition necessary to bring the Section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to by the Police Officer and thereupon so much of the information as relates distinctly to the fact thereby discovered is admissible in evidence against the accused whether it amounted to a confession or not. The decision in Pulukuri Kottaya was accepted with approval by the Apex Court in various decisions and that decision has now become locus classicus. 11. In Ramakishan Mithanlal Sharma and others v. State of Bombay (AIR 1955 SC 104) the Supreme Court held that on a reading of Sec. 27 of the Act it appeared that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. It was held: “The evidence of the Police Officer would no doubt go to show that accused knew of existence of the fact discovered in consequence of information Crl.A.Nos.1204/2006 & 1429/2006 10 given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of Sec. 27.” These observations do not support the contention that in the absence of authorship of concealment information given by the accused as deposed to by the Investigating Officer is inadmissible in evidence. 12. In Jaffer Husain Dastagir v. The State of Maharashtra the Supreme Court held (vide paragraph 4) thus: “In order that the Section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the Police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused”. It was also held that the essential ingredient of the Section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. In that case, it so happened that information Crl.A.Nos.1204/2006 & 1429/2006 11 given by the accused contained authorship of concealment also. Learned Judges further observed: “…………..If an accused charged with a theft of articles or receiving stolen articles, within the meaning of S.411 I.P.C. states to the police, “I will show you the articles at the place where I have kept them” and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i.e, keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.” The said observation was made with reference to the special facts of that case where information given by the accused contained authorship of concealment also and hence the discovery exended to the fact that it was the accused who had kept the articles at the particular place. Nowhere did the learned Judges in that decision observe that authorship of concealment is sine qua non for admissibility of the statement. This is clear from the observations in paragraph 4, quoted above. 13. Mahabir Biswas and another v. State of W.B. is also no authority to say that authorship of concealment is necessary. In that case the admissible part of statement of the accused pursuant to which the ring was recovered only proved that he knew that the ring was concealed in a particular place. It was Crl.A.Nos.1204/2006 & 1429/2006 12 held that from such knowledge, in the absence of other evidence and more particularly as the recovery was made almost six months after the incident, no inference of theft of the ring or involvement in the murder could be drawn. The decision indicates that even when authorship of concealment is not disclosed by the accused, information given by him and leading to the discovery of fact is admissible in evidence. 14. In Mahabir Mandal v. State of Bihar the Supreme Court only referred to inapplicability of the bar under Sec.162 of the Code of Criminal Procedure to the provisions of Sec.27 of the Act. In Himachal Pradesh Administration v. Om Prakash (1972 Cri.L.J. 606) the Supreme Court observed, referring to Pulukuri Kottaya: “.......... The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. ............... 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.” The said observation was made on the facts of the case where the admissible part of information given by the accused led the police to a witness (PW11) from whom the incriminating object was recovered. Those observations were Crl.A.Nos.1204/2006 & 1429/2006 13 highlighting the legal position that the fact discovered in that case was that the object was either sold to the witness (PW11) or hidden or kept with him. Nowhere in that decision the Supreme Court said that to make the information given by the accused admissible under Sec.27 of the Act, it must contain authorship of concealment. 15. It is true that in Pohalya Motya Valvi v. State of Maharashtra the admissible portion of the information given by the accused did not contain authorship of concealment. The Supreme Court held: “The recovery of a blood stained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. .................. To make such a circumstance incriminating it must be shown that the appellant himself had concealed the blood stained spear which was the weapon of offence..............” The above observation only indicated that if authorship of concealment of the weapon which is proved to be involved in the crime is disclosed by the accused, that is an incriminating circumstance against him. It was also held in that case that where the information given by one of the accused leading to the discovery of murder weapon was capable of two interpretations, i.e., (1) he was the person who concealed the weapon, or (2) that he had the knowledge of the place where Crl.A.Nos.1204/2006 & 1429/2006 14 it was hidden, the accused could not be convicted for murder on the basis of such information. That was because the connecting link between the object recovered and the accused was not proved by the prosecution and when the information given by the accused was capable of two interpretations the one beneficial to the accused had to be adopted. Not only that the said decision is no authority for the proposition that authorship of concealment is sine qua non for admissibility of information given by the accused, it is authority that even when the information given by the accused did not contain authorship of concealment, information leading to the discovery of fact is admissible in evidence but in the absence of other evidence, such evidence may not be sufficient to convict the accused. 16. In State of U.P. v. Jageshwar and others a gun was alleged to have been recovered in pursuance of a statement made by the accused. The Supreme Court observed: “……….. Nor, indeed, did he make any statement that he had concealed it at a place which he would point out. The discoveries under Section 27 of the Evidence Act are not of guns and daggers used in a crime. Guns and daggers have an ancient origin and one does not have to hunt for an accused to discover them. The discovery, mostly and really, is as regards the authorship of concealment. Conduct and concealment are incriminating circumstances and their Crl.A.Nos.1204/2006 & 1429/2006 15 discovery becomes relevant and admissible under Section 27 of the Evidence Act. ………….” The observation that “discovery, mostly and really, is as regards the authorship of concealment” does not indicate that according to the Supreme Court in the absence of authorship of concealment evidence regarding discovery is inadmissible under Sec. 27 of the Act. The Supreme Court was pointing out that it is not the information given by the accused which led to the discovery of guns and daggers, for, guns and daggers had an ancient origin and were in vogue and that one need not to go after an accused to discover guns and daggers. The observation only meant that authorship of concealment (of the weapon of offence) is an incriminating circumstance as is clear from the further observation: “Conduct and concealment are incriminating circumstances and their discovery becomes relevant and admissible under Section 27 of the Evidence Act”. Certainly authorship of concealment is also admissible under Sec.27 of the Act but this decision is no authority for the proposition that authorship of concealment is sine qua non for the application of Sec.27. 17. In Dudh Nath Pandey v. State of Uttar Pradesh ((1981) 2 SCC 166) the statement accompanying the discovery was woefully vague to identify the authorship of concealment with the result that pointing out the weapon was held, at the best to be sufficient to prove the knowledge of the Crl.A.Nos.1204/2006 & 1429/2006 16 appellant as to where the weapon was kept. That is not a case where for absence of evidence of authorship of concealment information given by the accused was held inadmissible under Sec.27 of the Act. 18. In Varghese v. State of Kerala (1998 (1) KLT 681) rendered by the Supreme Court, evidence regarding recovery of the weapon (of offence) was held to be not sufficient for conviction, in the absence of statement indicating concealment (of the weapon) by the accused or other incriminating articles. That decision only referred to the insufficiency of evidence including absence of statement indicating authorship of concealment. 19. None of the decisions of the Supreme Court referred to above either deviated from Pulukuri Kottaya as to the meaning of the expression “fact” discovered pursuant to the information given by the accused and admissible under Sec.27 of the Act, or held that authorship of concealment is sine qua non for admissibility of disclosure statement under Sec.27. On the other hand a close