Supreme Court of India
SANJAY @ KAKAversusTHE STATE (NCT OF DELHI)
- Citation
- 2001 INSC 77
- Decided
- 7 February 2001
- Disposal
- Dismissed
- Bench
- K T THOMAS
Holding
Disclosure statements that relate distinctly to the fact discovered are admissible under Section 27, and the recovered items and accompanying circumstances constitute sufficient evidence to uphold the convictions.
Summary
The appellants Sanjay, Nawabuddin and Vinod were convicted for murder and robbery after the police recovered a weapon, blood‑stained clothes and stolen jewellery based on their disclosure statements made under Section 27 of the Evidence Act. The defence argued that the statements were inadmissible because they contained the words "after the commission of the offence" and "looted property" and that the circumstantial evidence was insufficient. The Supreme Court held that, after deleting the objectionable words, the statements still fell within Section 27 as they related distinctly to the facts discovered, and that the recoveries and other circumstances (including an extra‑judicial confession to a witness) established a chain of evidence sufficient for conviction. The Court also affirmed that presumptions under Section 114 (Illustration a) and Section 106 could be drawn. Consequently, the appeal was dismissed and the convictions upheld.
Issues considered
- The admissibility of disclosure statements under Section 27 of the Evidence Act despite containing the phrases "after the commission of the offence" and "looted property".
- Whether such disclosure statements can be used to infer guilt for murder and robbery.
- The applicability of presumptions under Section 114 (Illustration a) and Section 106 of the Evidence Act.
- The admissibility of an extra‑judicial confession made to a private witness.
- The sufficiency of the recovered weapon, blood‑stained clothing and stolen property as circumstantial evidence for conviction under IPC sections 302, 392/34, 397 and TADA.
Legislation cited
- Arms Acts. 25, s. 27, s. 54, s. 59
- Code of Criminal Procedure, 1973s. 162
- Indian Evidence Act, 1872s. 106, s. 114, s. 24, s. 25, s. 26, s. 27
- Indian Penal Code, 1860s. 302, s. 392, s. 393, s. 397, s. 411
Subjects
Section 27 Evidence Actdisclosure statementscircumstantial evidencemurderrobberypresumption under Section 114extra‑judicial confessionTADAadmissibility of evidence
Judgment
A SA NJ A Y @ KAKA
THE STATE (NCT OF DELHI)
FEBRUARY 7, 2001
B [K.T. THOMAS AND R.P. SETHI. JJ.]
Evidence Act, 1872;
Section 27-Disclosure statement-Admissibility of-Accused commilted
C robhel)' in a house•in consequence of which deceased was stabbed to death--
Accused apprehended on the basis of extra-judicial confession made lo a
witness-Disclosure statements of accused led to recovery of weapon of
offence, blood stained clothes and stolen property belonging to deceased-
Accused convicted on circumstantial evidence-Correctness of-Held :
Disclosure statements do not implicate the accused with the commission of
D crime but refer only to the nature of property recovered-Such property is
proved to be the property of deceased, stolen after the robbery and murder--
Besides Section 27, court can draw presumption under Section 114,
illustration (a) and Section 106-Hence, conviction :1pheld.
The appellants-accused were convicted by the Designated Trail Court
E on circumstantial evidence under Sections 392/34, 397 and 302 besides
Section 5 of the Terrorist and Disruption Activities (prevention) Amendment
Act, 1993. Hence this appeal.
According to the prosecution, the accused entered a house to commit
robbery in consequence of which one S was stabbed to death. The accused
F made disclosure statements under Section 27 of the Evidence Act, 1872
pursuant to which the weapon of offence, blood stained clothes and stolen
property belonging to the deceased were recovered. One of the accused made
an extra-judicial confession to PW-5 based on which the accused persons
were apprehended.
G
On behalf of the accused persons it was contended that the disclosure
statements were hit by Sections 24 to 26 of the Evidence Act in view of the
worlds "after commission of the offence" and "looted property" appearing in
them.
Dismissing the appeal, the Court
H 904
SAN.IA Y v. ST ATE 905
HELD : I. In this case after the arrest of one of the accused, the A
extra-judicial confession made by him to P W-5 and recording the statement
of P W-5 the investigating officer apprehended the other accused persons. In
his interrogation one of the accused made a confessional statement, a major
portion of which is inadmissible in evidence being hit by Sections 24 to 26 of
the Evidence Act, 1872. 1916-Fl
B
2. Even if the objectionable words i.e. "after the commission of the
offence" and "looted property" are deleted, the appellants cannot be conferred
with any benefit, which would entitle them to acquittal. It is not disputed that
consequent upon the disclosure statements made, the articles mentioned
therein were actually recovered at their instance from the place where such C
articles had been .hidden by them. The mere use of the words "looted property"
in relation to the articles seized which were found to have been taken away
after the commission of the crime of murder and robbery would not change
the nature of the statement. The words do not implicate the accused with the
commission of the crime but refer only to the nature of the property hidden
by them, which were ultimately recovered consequent upon their disclosure D
statements. Hyper technical approach would defeat the ends of justice and
have disastrous effect. The property recovered consequent upon the making
of the disclosure statements has been proved to be the property of the deceased,
stolen after the commission of the offence of robbery and murder.1917-D-G I
2.2 Besides Section 27, the courts can draw presumptions under E
Section 114, Illustration (a) and Section 106 of the Evidence Act.1917-HI
Pulukuri Kottaya v. Emperor, AIR (1947) PC 67; State ofU.P. v. Deoman
Upadhyaya, AIR (1960) SC 1125; Mohamed fnayatuf/ah v. State of
Maharashtra, AIR (1976) SC 483; Erabhadrappa alias Krishnappa v. State F
of Karna/aka. 1198312 SCR 552; State of Maharashtra v. Damu, Sia Gopinath
Shinde 1200016 SCC 269; Guiab Chandv. State of MP, 1199513 SCC 574;
Mukund alias Kundu Mishra v. State of MP, 119971 JO SCC 130; Ronny
alias Ronald James Alwaris v. State of Maharashtra, 119981 3 SCC 625;
Baijur v. State of MP, AIR (1978) SC 522; State of Rajasthan v. Teja Ram, JT
(1992) 2 SC 279 and Gura Singh v. State of Rajasthan, JT 120001 Supp. 3 G
--- ...,._ sec 528, referred to.
Sanwat Khan v. State of Rajasthan, AIR (1956) SC 54 and Tulsiram
Kanu v. State AIR(l954) SC I, cited.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. H
906 SUPREME COURT REPORTS [2001] I S.C.R.
A 664 of 2000.
From the Judgment and Order dated 29.5.2000/30.5.2000 of the Tada
Court (D.C.11), Delhi in S.C. No. 188/95 in F.l.R. No. 155of1990.
With
B
Criminal Appeal Nos. 682 and 683 of 2000.
R.K. Jain, Sushi! kumar, Anoop Choudhry, Ajay Bhalla, Ms. Abha R.
Shanna and B.Y. Balaram Das for the appearing pBrties.
C The Judgment of the Court was delivered by :
SETHI, J. In the broad day light and in the capital city of the country,
the appellants and one Mohabat Ali, the four young desperados entered the
premises No. F-8/5, Model Town, Part-II, Delhi to commit robbery, in
consequence of which Smt. Sheela was stabbed to death. The occurrence
D which took place on 20th June, 1990 is not the isolated act so far as the law
and order and life and liberty of the people of the capital city and other parts
of the country are concerned. By killing the deceased and subjecting Amarjeet
Sharma to the threat of being killed by pointing a revolver at him, the
resistance of the commission of the intended crime was immobilised. After
E registration of the First Information Report and completion of the investigation,
charge-sheet was filed against the accused persons under Sections 302, 394,
397, 398, 342, 1208 and 411 JPC besides Sections 25, 27, 54 and 59 of the Arms
Act and Section 5 of the Terrorist and Disruption Activities (Prevention)
Amendment Act, 1993 (hereinafter referred to as "TADA (P) Act").
F The trial court found appellant Vinod guilty of offences under Section
392/34, 397 and 302 !PC, besides Section 5 of the TADA(P) Act. He was
sentenced to imprisonment for life and a fine of Rs. 2,000 for the offence under
Section 302 IPC, for seven years rigorous imprisonment for the offence under
Sections 397, 392/34 and was also sentenced to rigorous imprisonment for five
G years and a fine of Rs. 2,000 for the commission of offences under Section
5 of TADA (P). Accused Mohabat Ali was convicted for the offences under
Sections 392/34 IPC and Section 5 of the TADA (P) Act and was sentenced
to rigorous imprisonment for five years and a fine of Rs. 2,000 on each count.
Appellants Nawabuddin and Sanjay Moley were sentenced to five years
rigorous imprisonment and a fine of Rs. 2,000~ach for the commission of
H offence under Sections 392134 !PC. Various sentences were also imposed in
SANJAYv. STATE [SETHL.I.] 907
case of default of payment of fine. All the sentences were directed to run A
•y concurrently.
Aggrieved by the judgment of the Designated Trial Cow1, the appellants
have filed the present appeals contending that no case is made out against
anyone of them. and the trial court committed a mistake of law for basing its
findings and conviction on the evidence which was not only shaky and B
unreliable but also inadmissible in evidence under the relevant provisions of
law.
The facts, as disclosed in the First Information Report and the evidence
led by the prosecution, are that on 20th June, 1990 an anonymous call was C
received at the Police Control Room with respect to the commission of murder
in Model Town, Part-II area of the city of Delhi. This information was recorded
vide DD No.13-A whereafter Harbans Singh, Police Inspector of Police Station
Model Town along with his staff rushed to the spot where he found the ·dead
body of a woman lying in the pool of blood with multiple injuries, apparently
caused by sharp edged weapon. He also noticed household goods including D
clothes scattered all around. Three jewellery boxes, without jewellery, were
found lying in the room. One Amarjeet Sharma met the Police Inspector and
gave a statement to the effect that he was employed as a domestic servant
in that house for the last five to six days. According to him, at about 2.00
p.m. when he was preparing food in the kitchen, he heard the sound of door E
bell. When Smt. Sheela, his employer, opened the door, two young boys aged
18-19 and 19-20 years came inside pushing her. One of them inflicted multiple
knife injuries on the person of Smt. Sheela as a consequence of which she
fell down on the floor. The other intruder put revolver on the neck of the said
Amarjeet Shanna and made him stand in silence in a comer of the room. The
culprits cut telephone wires and searched for goods lying in the room. They F
removed the Kangan and Necklace worn by Smt. Sheela and kept all jewellery,
cash and other goods in two briefcases. In the process of inflicting the
injuries on the person of Smt. Sheela, the clothes of the culprits got blood
stains. One of the culprits was described as short-statured and the other long-
statured person. The culprits shut Amarjeet Sharma in an Almirah. After G
committing the offences, the aforesaid two boys left the place. He managed
to get out of the Almirah with great difficulty and came down. He raised an
alarm, upon which the people collected. Formal case was registered on the
basis of the statement of the aforesaid domestic servant. During investigation
appellani Sanjay Moley, the nephew of the deceased was arrested and on his
interrogation other accused apprehended. All the accused made disclosure H
...
908 SUPREME COURT REPORTS [200 I] I S.C.R.
A statements in consequence of which the .32 bore revolver with six cartridges,
a knife, blood stained clothes, scooter and the looted property were recovered ~-
from their houses and the places where they had stated to have hidden.
After their conviction and sentences only three of the four accused
have filed the present appeals. Mohabat Ali, convict has chosen not to
B challenge the verdict of the Designated Trial Court.
We have heard at lengtii S/Shri R.K. Jain and Sushi! Kumar, Senior
Advocates appearing for appellants Sanjay and Nawabuddin and Shri
V.Ramasubramaniam, Amicus Curaie for appellant Vinod. The learned counsel
C appearing for the appellants have vehemently argued that in the absence of
direct evidence in the form of eye-witnesses, the trial court was not justified
in recording the conviction against the appellants and sentencing them to
various imprisonments. According to them the circumstantial evidence relied
upon by the prosecution was shaky and inadmissible. Otherwise also the
circumstances relied upon by the prosecution were not sufficient to connect
D the appellants with the commission of the crime for which they were charged,
convicted and sentenced.
The circumstances relied upon by the prosecution and held proved by
the trial court are:
E "(i) Motive
(ii) Medical Evidence
(iii) Disclosure statement of accused persons.
(iv) Recovery of stolen property from the accused persons.
F (v) Recovery of blood stained shirt from accused vinod.
(vi) Recovery of weapon of offence from accused Vinod.
(vii) Extra judicial confession of accused Sanjay Moley.
(viii Last seen circumstances in respect of accused Sanjay and
G Nawabuddin."
The most important circumstances to connect the accused with the
commission of crime are the disclosure statements made by them and the
recovery of weapon of offence, blood stained clothes and stolen property
made in consequence thereof besides extra judicial confession of accused
H Sanjay, the circumstance of his being seen in the company of Nawabuddin
SAN.IA Y v. STATE [SETHI. J.] 909
under suspicious circumstances and observance of his unusual behaviour. A
The circumstances proving the motive and the medical evidence connecting
the accused with the commission of crime are dependent upon the proof of
the other circumstances i.e., disclosure statements, recoveries and the extra
judicial confession.
The accused were arrested in consequence to the clue provided by B
Trilochan Singh (PW 13) and Sheetal Grover (PW5) in response to the public
assistance sought by the police on Public Address System. Sheetal Grover
(PW5) stated that the appellant Sanjay who was his friend came to his shop
in the evening of 20th June, 1990 at about 5-6 p.m. He was in worried mood.
Upon enquiry he told the witness that being in need of money he along with C
his three friends went to the house of his aunt with a view to commit theft.
He further told that while he and one of his friends stood outside the house
of his aunt, the other went inside.the house to commit theft. Those who went
inside after coming back out of the house told Sanjay, appellant that they had
committed the murder of his aunt. After knowing about the death of his aunt,
the aforesaid accused got scared and worried. He came to the witness for D
seeking his help. The witness told him that he should go to the police and
make his genuine statement there. On the same night the witness was called
in the police station where his statement was recorded.
Assailing the testimony of PW5, Shri R.K. Jain, learned Senior Counsel E
appearing for Sanjay, appellant, submitted that the statement of the witness
is fabricated, after-thought and unreliable. According to him, there was no
cause or occasion for Sanjay to go to the witness for making the aforesaid
extra judicial confession as, according to him, they did not have such relations
between them which could prompt the aforesaid accused to confide with the.
witness. He has further submitted that as the accused Sanjay was in the F
police station at the time when statement of PW5 was recorded and despite
statement permitted to go home, the story of the accused making the extra-
judicial confession stood falsified.
·- We have critically analysed the statement of the aforesaid witness and G
do not find any substance in the submissions made on behalf of the aforesaid
accused. The witness, PWS has categorically stated "I developed friendship
with accused Sanjay in the last I and half years of this incident". The common
friend of the witness and the accused was one Dhannender Dhingra. In his
statement, recorded under Section 3 I 3 Cr.P.C., the appellant Sanjay has not
specifically denied his friendship with PWS. No suggestion was made to the H
910 SUPREME COURT REPORTS !200 IJ I S.C.R.
A aforesaid witness for allegedly making wrong statement and thereby roping
in the said accused with the commission of the crime. Admittedly, PW5 is a ~
shopkeeper and has no axe to grind with the appellant Sanjay. Why did he
go to the witness to make clean his breast, is a fact only known to the
accused for which he has not given any explanation. We have no hesitation
B to believe the statement of Sheetal Grover (PW5) that the accused Sanjay had
in fact ccme to him on 20th June, 1990 about 5-6 p.m. and confided with
respect to the offence of robbery and murder committed by him and others
on that day. There is nothing in the deposition of any of the witness that the
police had known about the commission of the offence and involvement of
Sanjay before the statement of Sheetal Grover (PW5) recorded by the police
C at about 9.00 p.m.
We cannot accept the contention of Shri Jain to hold that the accused
was present in the police station when the statement of PW5 was recorded ~
and that the investigating officer had permitted the said accused to go home
despite the statement of the witness. PW5 has categorically stated that he
D closed his shop at about 7.30/8.00 p.m. on 20th June, 1990 and reached his
house in half an hour's time. He further stated that "on 20th Ju11e, 1990 the
police people came to my house at 8-9 p.m. to call me to the police station".
SI Virender Singh PW24 has stated that Sanjay, appellant was interrogated in
the police station on 20th June, 1990 at about 8 p.m. and let off after
E interrogation. He was directed to come again in the morning at 10.00 a.m. on
the next day. By reading both the statements together it transpires that after
his interrogation Sanjay appellant was permitted to go home on 20th June,
1990 at 8.00 p.m. Statement of Sheetal Grover (PW5) was recorded after 9.00
p.m. in the police station, obviously when the said accused had left for his
home. Picking up the words "accused Sanjay was present in the police station
F at that time" from the statement of PW5, the learned counsel has tried to make
a mountain out of the mole. The aforesaid sentence appears in the context
when the police came at the residence of the witness and "on enquiry, had
told us that my presence was required in the police station about a statement
in regard to Sanjay, accused. Accused Sanjay was present in the police ...:-
G station at that time". There is no confusion in our mind that at the time the
police party left the police station for contacting PW5 at about 7.30 and 8.00
p.m., Sanjay, appellant was present in the police station. He was directed to
go home as by that time there was nothing against him as per the statement
of SI Virender Singh (PW24).
H The testimony of PW5 m this regard does not suffer from any
SAN.IA Y v. STA TE [SETHI. .I.] 911
, contradiction to absolve the appellant Sanjay of his criminal liability ·with A
respect to the commission of the crime for which he has been convicted and
sentenced. As to why the said accused was not arrested on the same night,
the defence has not sought any explanation from the IO. One of the reasons
for not arresting accused Sanjay immediately after recording the statement of
PW5 may be that the investigating officer knew that the said accused had to B
appear in the police station on the next morning at I 0.00 a.m. for which
specific directions had been given to him. Be that as it may, this alleged
omission of not arresting the accused during the night time cannot be made
a basis for discrediting the testimony of PW5.
We are satisfied that Sheetal Grover (PW5) is an independent witness C
and his testimony inspires confidence which has been relied upon by the trial
court. We see no reason to disbelieve the statement of Sheetal Grover (PW5)
insofar as it relates to the making of the extra-judicial confession by appellant
Sanjay before him. The defence has utterly failed to bring on record any
circumstance which could be made a basis for discrediting the testimony of
the aforesaid witness. However, the effect of the statement of the accused D
before the witness would be tested in the light of other circumstances and
the whole conspectus of the prosecution case.
There is no dispute that after the statement of Sheetal Grover (PW5)
- 'i.
and interrogation of Sanjay appellant, the other accused involved in the crime
were apprehended and arrested. During the course of interrogation the accused E
persons made statements which led to the recovery of the weapon of offence,
stolen property and other incriminating material. It is also admitted that Smt.
Sheela met with a homicidal death on account of about 24 injuries inflicted
on her person with a sharp edged weapon like the knife, the weapon of
offence seized in the present case.
F
The most important circumstance for the prosecution in the case is the
disclosure statements of the accused persons and recoveries of the stolen
property, blood stained shirt and weapon of offence consequent upon such
statements. The admissibility of the statements made by the accused persons
to the police is challenged on twin grounds, i.e., (i) factually no such statement G
was made, and (ii) the statement made was inadmissible in evidence.
Section 25 mandates that no confession made to a police officer shall
be proved as against a person accused of an offence. Similarly Section 26
provides that confession by the accused person while in custody of police
cannot be proved against him. However, to the aforesaid rule of Sections 25 H
912 SUPREME COURT REPORTS [2001) l S.C.R.
A to 26 of the Evidence Act, there is an exception carved out by Sectfon 27
providing 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
B be proved. Section 27 is a proviso to Sections 25 and 26. Such statements
are generally termed as disclosure statements leading to the discovery of
facts which are presumably in the exclusive knowledge of the maker. Section
27 appears to be based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded thereby that
the information was true and accordingly it can be safely allowed to be given
C in evidence.
As the Section is alleged to be frequently misused by the police, the
courts are required to be vigilant about its application. The court must ensure
the credibility of evidence by police because this provision is vulnerable to
abuse. It does not, however, mean that any statement made in terms of the
D aforesaid section should be seen with suspicion and it cannot be discarded
only on the ground that it was made to a police officer during investigation.
The court has to be cautious that no effort is made by the prosecution to
make out a statement of accused with a simple case of recovery as a case of
discovery of fact in order to attract the provisions of Section 27.
E
The position of law in relation to Section 27 of the Act was elaborately
made clear by Sir John Beaumont in Pu/ukuri Kollaya and others v. Emperor,
AIR (1947) PC 67 wherein it was held:
"Section 27, which is not artistically worded, provides an exception to
F the prohibition imposed by the preceding section, and enables certain
statements made by a person in police custody to be proved. 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, and thereupon so much of the information as relates
G distinctly to the fact thereby discovered may be proved. The section
seems to be based on the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded thereby
that the information was true, and accordingly can be safely allowed
to be given in evidence; but clearly the extent of the infonnation
H admissible must depend on the exact nature of the fact discovered to
SAN.IA Y v. STATE (SETHI, .I.] 913
which such information is required to relate. Normally the section is A
brought into operation when a person in police custody produces
from some place of concealment some object, such as a dead body,
a weapon, or ornaments, said to be connected with the crime of which
the informant is accused. Mr. Megaw, for the Crown has argued that
in such a case the 'fact discovered' is the physical object produced, B
and that any information which relates distinctly to that object can be
proved. Upon this view information given by a person that the body
produced is that of a person murdered by him, that the weapon
produced is the one used by him in the commission of a murder, or
that the ornaments produced were stolen in a dacoity would all be
admissible. If this be the effect of section 27, little substance would C
remain in the ban imposed by the two preceding sections on
confessions made to the police, or by persons in police custody. That
... -+ ban was presumably inspired by the fear of the Legislature that a
person under police influence might be induced to confess by the
exercise of undue pressure. But if all that is required to lift the ban D
be the inclusion in the confession of information relating to an object
subsequently produced, it seems reasonable to· suppose that the
persuasive powers of the police will prove equal to the occasion, and
that in practice the ban will lose its effect. On normal principles of
construction their Lordships think that the proviso to S. 26, added by
S. 27, should not be held to nullify the substance of the section. In E
their Lordships' view 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 F
past history, of th.e 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 lea<ls to the discovery of the fact that G
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. But if to the statement
the words be added 'with which I stabbed A' these words are
admissible since they do not relate to the discovery of the knife in the
house of the informant." H
914 SUPREME COURT REPORTS [2001) I S.C.R.
A· In State of Uttar Pradesh v. Deoman Upadhyaya, AIR (1960) SC 1125
this Court held that Sections 25 and 26 were manifestly intended to hit an evil, ~
viz., to guard against the danger of receiving in evidence testimony from
tainted sources about statements made by persons accused of offences.
These sections form part of a statute which codifies the law relating to the
B relevancy of evidence and proof of facts in judicial proceedings. The State
is as much concerned with punishing offenders who may be proved guilty of
committing of offences as it is concerned with protecting persons who may
be compelled to give confessional statements. Section 27 renders information
admissible on the ground that the discovery of a fact pursuant to a statement
made by a person in custody is a guarantee of truth of ihe statement made
C by him and the legislature has chosen to make on that ground an exception
to the rule prohibiting proof of such statement. The principle of admitting
evidence of statements made by a person giving information leading to the
discovery of facts which may be used in evidence against him is manifestly
reasonable. In that case the High Court had acquitted the accused on the
ground that his statement which led to the recovery of gandasa, the weapon
D of offence, was inadmissible. The accused Deoman had made a statement to
hand over the gandasa which he stated to have thrown into a tank and got
it recovered. The trial court convicted the accused for the offence of murder.
The Full Bench of the High Court held that Section 27 of the Evidence Act
which allegedly created an unjustifiable discrimination between persons in
E custody and persons out of custody offending Article 14 of the Constitution,
was unenforceable. After the opinion of the Full Bench a Division Bench of
the Court excluded from consideration the statement made by the accused in
the presence of the police officer and held that the story of the accused
having borrowed a gandasa on the day of occurrence was unreliable. The
accused was acquitted but at the instance of the State ofU.P., the High Court
F granted a certificate to file the appeal in this Court. This Court did not agree
with the position of law settled by the High Court and decided to proceed
to review the evidence in the light of that statement in so far as it distinctly
related to the fact thereby discovery being admissible. Dealing with the
conclusions arrived at by the High Court and on the facts of the case, this
G Court observed:
"The High Court was of the view that the mere fetching of the
gandasa from its hiding place did not establish that Deoman himself
had put it in the tank, and an inference could legitimately be raised
that somebody else had placed it in the tank. or that Deoman had seen
H someone placing that gandasa in the tank or that someone had told
SA NJ A Y v. STA TE.[SETHI. J.] 915
him about the gandasa lying in the tank. But for reasons already set A
out the information given by Deoman is provable insofar as it distinctly
relates to the fact thereby discovered; and his statement that he had
thrown the gandasa in the tank is information which distinctly relates
to the discovery of the gandasa. Discovery from its place of hiding,
at the instance of Deoman of the gandasa stained with human blood B
in the light of the admission by him that he had thrown it in the tank
in which it was found therefore acquires significance, and destroys
the theories suggested by the High Court."
In Mohmed lnayatul/ah v. The State of Maharashtra, AIR (1976) SC 483
it was held that expression 'fact discovered' includes not only the physical C
object produced but also place from which it is produced and the knowledge
of the accused as to that. Interpreting the words of Section "so much of the
information" as relates distinctly to the fact thereby discovered, the Court
held that the word "distinctly" means "directly", "indubitably", "strictly",
"unmistakably". The word has been advisedly used to limit and define the
scope of proveable information. The phrase "distinctly" relates "to the fact D
thereby discovered". The phrase refers to that part of information supplied
by the accused which is the direct cause of discovery of a fact. The rest of
the information has to be excluded.
In Earabhadrappa alias Krishnappa v. State of Karnataka, [1983] 2 E
SCR 552 it was held that for the applicability of Section 27 of the Evidence
Act two conditions are pre-requisite, viz., (i) information must be such as has
caused discovery of the fact, and (ii) the information must 'relate distinctly'
to the fact discovered. Under Section 27 only so much of the information as
distinctly relates to the fact really thereby discovered, is admissible. While
deciding the applicability of Section 27 of the Evidence Act, the Court has F
also to keep in mind the nature of presumption under Illustration (a) to (s)
of Section 114 of the Evidence Act. The Court can, therefore, presume the
existence of a fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct and public and
private business, in their relations to the facts of the particular case. In that G
case one of the circumstance relied upon by the prosecution against the
accused was that on being arrested after a year of the incident, the accused
made a statement before the police leading to the recovery of some of the
gold ornaments of the deceased and her six silk sarees, from different places
which were identified by the witness as belonging to the deceased. In that
context the court observed: H
916 SUPREME COURT REPORTS [2001] 1 S.C.R.
A 'There is no controversy ihat the statement made by the appellant Ex.P-
35 is admissible under S. 27 of the Evidence Act. Under S. 27 on:y so much
of the information as distinctly relates to the facts really thereby discovered
is admissible. The word 'fact' means some concrete or material fact to which
the information directly relates."
•
B In a latest judgment this Court in State of Maharashtra v. Damu, Slo
Gopinath Shinde & Ors., [2000] 6 SCC 269 has held that the Section 27 was
based on the doctrine of confirmation by subsequent events and giving the
section actual and expanding meanings, held:
'The basic idea embedded in Section 27 of the Evidence Act is the
c doctrine of confirmation by subsequent events. The doctrine is founded
on the principle that if any fact is discovered in a search made on the
strength of any infom1ation obtained from a prisoner, such a discovery
is a guarantee that the infomiation supplied by the prisoner is true.
The information might be confessional or non- inculpatory in nature,
D but it results in discovery of a fact it becomes a reliable infomiation.
Hence the legislature permitted such information to be used as
evidence by restricting the admissible portion to the minimum. It is
now well settled that recovery of an object is not discovery of a fact
as envisaged in section. The decision of the Privy Council in Pulukuri
Kottaya v. Emperor, AIR {1947) PC 67 is the most. quoted authority ·
E for supporting the interpretation that the 'fact discovered' envisaged
in the section embraces the place from which the object was produced,
the knowledge of the accused as to it, but the information given must
relate distinctly to that effect."
In this case after the arrest of Sanjay appellant, the extra- judicial
F confession made by him to PW5 and recording the statement of PW5 the
investigating officer apprehended the other accused persons. In his
interrogation Vinod appellant made a confessional statement, a major portion
of which is inadmissible in evidence being hit by Sections 24 to 26 of the
Evidence Act. However, the relevant portion which was used for recovery of
G the stolen property is as under:
"I got gold jewellery and watches which are lying at my house at
Shakarpur. I can point out the same and get them recovered. Both
shirts are lying at my house, one pant at the residence of my friend
at Madipur, and I am wearing the pant which I washed (after commission
H of the offence). I can get recovered the Dagger and Katta from my
SAN.IA Y v. STATE [SETHI, .1.J 917
house at Shakarpur and also above mentioned things." · A
In his disclosure statement accused Mohabat Ali had stated:
"I got gold jewellery, watches, cameras and clothes which are lying
at my home. The revolver and kirpan used in the commission of the
offence are also lying in my house. I can recovered the (looted) B
- _.._ property and the weapon of offence from my house at Mangolpuri.
I can also get arrested. Ramkishan, the seller of the revolver."
The relevant portion of statement of accused Nawabuddin is as under:
"I took jewellery and watches of my and Sanjay's share to mYresidence. C
Sanjay dropped me on scooter. I can get recovered the (looted) property
from my residence."
. ~- Raising objections to the words "after commission of the offence"
appearing in the disclosure statement of Vinod and "looted property" in the
statement of Nawabuddin, the learned counsel for the appellants submitted D
that the whole of the statement was hit by Sections 24 to 26 of the Evidence
Act and Section I 62 of the Code of Criminal Procedure. We are not inclined
to accept such a general statement. Even if the objectionable words (bracketed
above) are deleted, the appellants cannot be conferred with any benefit which
- x would entitle them to acquittal. It is not disputed that consequent upon the
disclosure statements made, the articles mentioned therein were actually E
recovered at their instance from the place where such articles had been
hidden by them. The mere use of the words "looted property" in relation to
the articles seized which were found to have been taken away after the
commission of the crime of murder and robbery would not change the nature
of the.statement. The words do not implicate the accused with the commission F
of the crime but refer only to the nature of the property hidden by them which
were ultimately recovered consequent upon their disclosure statements.
Hypertechnical approach, as projected by the defence counsel, would defeat
the ends of justice and have disastrous effect. The property recovered
consequent upon the making of the disclosure statements has been proved
to be the property of the deceased, stolen after the commission of the offence G
of robbery and murder.
Besides Section 27, the courts can draw presumptions under Section
114, Illustrations (a) and Sec:ion I 06 of the Evidence Act. In Guiab Chand
v. State of MP., [1995] 3 SCC 574 where ornaments of the deceased were
recovered from the possession of the accused immediately after the occurrence, H
918 SUPREME COURT REPORTS [2001] I S.C.R.
A this Court held:
"It is true that simply on the recovery of stolen articles, no inference
can be drawn that a person in possession of the stolen articles is
guilty of the offence of murder and robbery. But culpability for the
aforesaid offences will depend on the facts and circumstances of the
B case and the nature of evidence adduced. It has been indicated by
this Court in Sanwat Khan v. State of Rajasthan, AIR (1956) SC 54
that no hard and fast rule can be laid down as to what inference
should be drawn from certain circumstances. It has also been indicated
that where only evidence against the accused is recovery of stolen
c properties, then although the circumstances may indicate that the
theft and murder might have been committed at the same time, it is not
safe to draw an inference that the person in possession of the stolen
property had committed the murder. A note of caution has been given
by this Court by indicating that suspicion should not take the place
of proof. It appears that the High Court in passing the impugned
D judgment has taken note of the said decision of this Court. But as
rightly indicated by the High Court, the said decision is not applicable
in the facts and circumstances of the present case. The High Court
has placed reliance on the other decision of this Court rendered in
Tulsiram Kanu v. State, AIR (1954) SC I. In the said decision, this
E court has indicated that the presumption permitted to be drawn under
Section 114, Illustration (a) of the Evidence Act has to be drawn under
the 'important time factor'. If the ornaments in possession of the
deceased are found in possession of a person soon after the murder,
a presumption of guilt may be permitted. But if several months had
expired in the interval, the presumption cannot be permitted to be
F drawn having regard to the circumstances of the case. In the instant
case, it has been established that immediately on the next day of the
murder, the accused Guiab Chand had sold some of the ornaments
belonging to the deceased and within 3-4 days , the recovery of the
said stolen articles was made from his house at the instance of the
accused. Such close proximity of the recovery, which has been
G
indicated by this Court as an 'important time factor', should not be
lost sight of in deciding the present case. It may be indicated here that ~
in a latter decision of this Court in Earabhadrappa v. State of
Karnataka, [1983] 2 SCC 330, this Court has held that the nature of
the presumption and Illustration (a) under Section 114 of the Evidence
H Act must depend upon the nature of evidence adduced. No fixed time-
SANJAYv. STATE[SETHI,J.] 919
- y
limit can be laid down to determine whether possession in the recent A
or otherwise and each case must be judged on its own facts. The
question as to what amounts to recent possession sufficient to justify
the presumption of guilt varies according as the stolen article is or is
not calculated to pass readily from hand to hand. If the stolen articles
were such as were not likely to pass r~adily from hand to hand, the B
period of one year that elapsed cannot be said to be too long
particularly when the appellant had been absconding during that
->
period. In our view, it has been rightly held by the High Court that
the accused was not afflue:it enough to possess the said ornaments
and from the nature of the evidence adduced in this case and from
the recovery of the said articles from his possession and his dealing C
with the ornaments of the deceased immediately after th.e murder and
robbery a reasonable inference of the commission of the said offence
can be drawn against the appellant. Excepting an assertion that the
ornaments belonged to ihe family of the accused which claim has
been rightly discarded, no plausible explanation for lawful possession
of the said ornaments immediately after the murder has been given by D
the accused. In the facts of this case, it appears to us that murder and
robbery have been proved to have been integral parts of the same
transaction and therefore the presumption arising under llustration (a)
of Section 114 Evidence Act is that not only the appellant committed
the murder of the deceased but also committed robbery of her E
ornaments."
In the instant case also, the disclosure statements were made by the
accused persons on the next day of the commission of the offence and the
property of the deceased was recovered at their instance from the places
where they had kept such properties, on the same day. To the same effect are F
the judgments in Mukund Alias Kundu Mishra & Anr. v. State of MP., (1997)
10 SCC 130 and Ronny Alias Ronald James Alwaris & Ors. v. State of
Maharashtra, [ 1998) 3 SCC 625. In the latter case the Court held:
"Apropos the recovery of articles belonging to the Ohol family from G
the possession of the appellants soon after the robbery and the
murder of the deceased (Mr. Mohan Ohol, Mrs. Ruhi Oho! and Mr.
Rohan Oho!) which possession has remained unexplained by the
appellants, the presumption under Illustration (a) of Section 114 of the
Evidence Act will be attracted. It needs no discussion to conclude
that the murder and the robbery of the articles were found to be part H
920 SUPREME COURT REPORTS [2001) I S.C.R.
A of the same transaction. The irresistible conclusion would, therefore,
be that the appellants and no one else had committed the three.
murders and the robbery."
The disclosure statements by the accused persons stand established
by the testimony of Satish Khanna (PW22) and the investigating officer. The
B trial court was, therefore, justified in relying upon the circumstances of the
disclosure statements of the accused persons and consequent recovery of
stolen property, blood stained shirt of Vinod appellant besides weapon of
offence. We find no substance in the submission of the learned defence
counsel that as no independent witnesses were associated with the recoveries,
C a doubt is created in the prosecution version. Satish Khanna (PW22) is the
natural witness being brother of the deceased to be present during the
investigation when the accused are stated to have made the statements within
the meaning of Section 27 of the Evidence Act. Otherwise also there is no
reason to disbelieve the testimony of the IO Harbans Singh (PW25).
D A faint attempt was made by the counsel for the appellants to persuade
us to hold that the recoveries were doubtful because according to them
prosecution had failed to ascertain the details of the stolen property and get
it identified only after the recovery. Mrs. Renu Moley, PWI 7 who is the
daughter of the deceased has deposed in the Court that she was called in the
E police station on 21st June, 1990 and enquired about the articles missing from
her house. After checking she found missing 8 gold bangles, 6 other gold
bangles, 6 pairs of ear-rings of gold, 6 pairs of tops, three pairs of ear-
jhumkas, one Mangalsutra, one ginni, two golden rings, two idols of Lord
Ganesha and Goddess Lakshmi made of silver, the plates of silver on which
Air India was engraved, one lady set of silver, 8 wrist watches, 4 cameras, I
F electric shaver, 5 sarees, 20 .suit-pieces, 6 gents suit-pieces, stitched shirt, two
big bags of leather and one small bag. She has again stated that after the
recovery of the property from the accused persons she identified the articles
and found them to be belonging to her mother, which were stolen on the day
of her murder. We do not agree with th,e counsel for the appellants that the
G recovery of the articles had preceded the making of the disclosure statements.
Learned counsel appearing for the appellants Sanjay and Nawabuddin ~
then submitted that even if the disclosure statements and the recoveries are
admitted, their clients can at the most be convicted for the commission of
offence under Section 411 IPC. We do not agree with this submission as well
H in view of the fact that the murder and robbery in the instant case were part
SANJAYv. STATE[SETHLJ.] 921
of the same transactiori and the accused from whom the recoveries were· A
"·
made, consequent upon their disclosure statements, did not offer any
explanation regarding their possession of the stolen properties. Drawing a
presumption under Section 114 of the Evidence Act it can safely be held that
the aforesaid two accused persons were atleast guilty of the offence of
robbery punishable under Section 392 IPC on the assumption that they were. B
not armed with any deadly weapon and not aware of Vinod appellant being
armed with dagger. The trial Court was, therefore, justified in holding that "the
circumstances enumerated above together complete the chain of circumstances
to prove the guilt of the accused persons in so far as the offence of robbery
is concerned. lnfact the disclosure statements of the accused persons and
huge recoveries from them at their iristance by itself is a sufficient circumstance C
on the very next day of the incident which clearly goes to show that the
-~ accused persons had joined hands to commit the offence of robbery". The
Court also rightly held that, "Recent and unexplained possession of stolen
properties will be taken to be presumptive evidence of the charge of murder
as well. (See Baijur v. State of Madhya Pradesh, AIR (1978) SC Page 522.
Also see Eara Bhadrappa 's case (supra). In the case of Guiab Chand v. State D
of Madhya Pradesh, [1975] SCC page 574 quoted its earlier decision in Tulsi
Ram's case with approval that the presumption permitted to be drawn under
illustration l 14(a) of the Evidence Act has to be read alongwith 'important
time factor'. If the ornaments in possession of the deceased are found in
possession of the person soon after the murder, a presumption of killing may E
be permitted. In the said case before the Supreme Court ornaments belonging
to the deceased had been sold by accused Guiab Chand of that case and
within 3-4 days the recovery of the stolen articles was made from his house
at the instance of the accused. The court held that such close proximity of
~ the recovery which has been indicated by the court as 'important time factor'
should not be lost sight of'. On the basis of the evidence led in the case and F
keeping in view the whole conspectus of the case the trial court rightly
concluded that accused Vinod in the process of committing robbery used
deadly weapon, namely, dagger and killing Smt Sheela while the other three
accused persons have participated in the commission of crime of robbery and
actually removed huge articles including jewellery from the house of the G
deceased.
Shri Ramsubramaniam, Advocate, appearing as Amicus Curaie for
accused Vinod submitted that as the prosecution has failed to prove the
origin of blood found on the pant and shirt of vinod appellant, he could not
be held guilty of the offence of murder. Repelling such contention this Court H
922 SUPREME COURT REPORTS [200 I] I S.C.R.
A in State of Rajasthan v. Teja Ram & Ors., JT (1992) 2 SC 279 held:
"Failure of the Serologist to detect the origin of the blood due to
disintegration of the serum in the meanwhile does not mean that the
blood stuck on the axe would not have been human blood at all.
Sometimes it happens, either because the stain is too insufficient or
B due to haematological changes and plasmatic coagulation that a
serologist might fail to detect the origin of the blood. Will it then mean
that the blood would be of some other Grigin? Such guesswork that
blood on the other axe would have been animal blood in unrealistic
and far-fetched in the broad sp~ctrum of this case. The effort of the
criminal court should not be to prowl for imaginative doubts. Unless
c the doubt is of a reasonable dimension which a judicially conscientious
mind entertains with some objectivity, no benefit can be claimed by
the accused."
Following Teja Ram's case this Court again in Gura Singh v. Stale of
D Rajasthan, JT (2000) Suppl. 3 SC 528 held:
"We do not find aily substance in the submissions of the learned
counsel for the appellant that in the absence of the report regarding
the origin of the blood, the trial court could not have convicted the ·
accused. The Serologist and Chemical Examiner has found it that the
E Chadar (sheet) seized in consequence of the disclosure statement
made by the appellant was stained with human blood. As with the
lapse of time the classification of the blood could not be determined,
no bonus is conferred upon the accused to claim any benefit on the
strength of such a belated and stale argument. The trial court as well
as the High Court were, therefore, justified in holding this circumstance
F
as proved beyond doubt against the appellant."
By producing positive evidence, the prosecution established that
appellant Vinod was in possession of a fire arm and cartridges in a Notified
Area of Delhi vide notification No. F. 25(3) 87-HP dated 20. I 0.1987 and thus
G guilty of the offence punishable under Section 5 of the TADA (P) Act besides
the offence of murder punishable under Section 302 IPC. )(°
We do not find any merit in these appeals which are accordingly
dismissed
H V.S.S. Appeals dismissed.
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