In Re: Sheik Khader Sahib and Another

Somasundaram, J.—Accused 3 and 1 are the petitioners respectively in the above cases-They were convicted and sentenced to rigorous

imprisonment for six months by the Stationary Sub-Magistrate, Cuddapah, for an offence u/s 411, Indian Penal Code. In appeal, the Sub-

Divisional Magistrate, Cuddapah, confirmed the convictions and sentences.

On 27th November, 1946, between 7 and 8 p.m. there was a theft of gold and diamond jewels, cash and other properties of the value of about

Rs. 10,000 in the house of one Rao Sahib K. Venkatesan Chetti in Cuddapah Town. The Cirole Inspector of Police on receipt of information,

investigated the case. In the course of the investigation, he recovered M.Os. 1 to 4 from the tank bund on the 28th November, 1946. The next day

he had the tank searched as a result of which he recovered M.Os. 5 to 38. He suspected the 1st accused who was traced and arrested, on 18th

December, 1946, and he made a statement in consequence of which M.Os.. 39 to 62, 72 to 82, 85 and 86 were recovered from a pit adjoining

the pial of the house of accused 3. Accused 3 was then arrested and on information furnished by him M.Os. 63 and 64 were recovered from a pit

under a flower pot in the backyard of his house. A search of his house resulted in the recover) of a small tin,. M.O. 83 containing1 Rs. 382-8-0.

He was then taken to the police station and there-he made a further statement in consequence of which M.Os. 65 to 71 were recovered from a

pot buried in a corner in the kitchen of accused 3. The properties were later identified by P.W. 1 as his. The case against petitioners rests mainly

on the statements made by them u/s 27 of the Indian Evidence Act and the consequent recovery of the stolen articles.

The statement attributed to the first accused and admitted by the lower court is as follows:

On 27th November, 1946, i.e., the second day of Moharram I brought out a trunk from the residence of Rao Sahib P. Venkatesam Ghetti at

about 7-30 in the evening. I bundled the jewels that were in the trunk in a cloth and I buried that cloth bundle by the side of the pial of Khadar

Sahib in a pit. I will show you the spot.

Accused 3 as already stated made two statements. The portions admitted by the lower court are;

(a) I dug out the pit to find out what it contained and found a number of jewels. I took out one gold pannirubuddi and gold kadiam, set with stones

from among the jewels and kept back the bundle in the pit. I buried the gold pannirubuddi and the hand kadiam in my backyard under a flower pot

in a pit. I will point out the spot.

(b) took some more jewels from the place where Bechu concealed them in addition to gold pannirubuddi and gold kadiyam. I buried them in my

home in one corner of the kitchen. I will point out the place.

On the above two statements by the two petitioners they were convicted and sentenced as aforesaid. The only point in revision is whether the

statements admitted by the lower court are admissible and if not, to what extent they are admissible. According to the Full Bench decision of our

High Court in In Re: Athappa Goundan, In re, the whole of the above statements will be admissible. But that decision has been overruled by the

Judicial Committee in Kotayya v. King Emperor (1947) 1 M.L.J. 219 : L.R. 74 IndAp 65 : ILR (1948) Mad. 1 (P.C.) in which their Lordships

said that in their Lordships opinion Athappa Goundan In Re: Athappa Goundan, , was wrongly decided. In the Privy Council case, the statement

that was admitted by the lower court was this:

About 14 days ago, I, Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We

all beat Bodupatti China Sivayya and Subayya to death. The remaining persons Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya

who was in our party received blows on his hajids. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of

Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.

Their Lordships held that the whole of the statement except the passage,

I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come

is inadmissible.

There was a confessional statement made by accused 3 in that case which was deposed to by the Police Sub-Inspector who said that accused 3

said to him:

I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place.

Their Lordships referring to this said:

The first sentence must be omitted. This was followed by a mediatornama, Ex. Q.-I, which is unobjectionable except for a sentence in the middle.

He said that it was with that spear that he had stabbed Bodupatti Sivayya which must be omitted.

This decision of the Privy Council has been referred to and followed by a Bench of this Court in Public Prosecutor Vs. Oor Goundan alias

Sommalai Goundan and Another, in which it has been held that the statement

I have buried in the margin of the eastern ridge of my sugarcane garden the knife. If you come with me I shall take and give it

is admissible.

It is now contended by Mr. Rajagopalachari, learned Counsel for the petitioner, that the Judicial Committee and the Bench of this Court

admitted portions referred to in their decision because they were to use the phrase of the learned Counsel, innocuous"". He relies, strongly on the

enunciation of the principles laid down earlier by their Lordships on the construction of Section 27. Their Lordships state:

On normal principles of construction their Lordships think that the proviso to Section 26 added by Section 27, should not be held to nullify the

substance of the section.

I entirely agree with the learned Counsel that Section 27 should not be construed so as to lift the ban imposed by the two preceding sections. At

the same time I do not agree with him when he states that the Privy Council admitted and intended to admit only those portions which are

innocuous as admissible u/s 27. In the Privy Council, it was contended on behalf of the Crown that the ""fact discovered"" is a physical object

produced and that any information which relates distinctly to that object can be proved. Their Lordships did not agree with that contention and

pointed out:

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.

They further observe as follows:

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.

In the end their Lordships have held, as already stated that the statement, "" I hid it (a spear) and my stick in the rick of Venkatanarasu in the village.

I will show if you come"" is admissible. The spear and the stick will be relevant only when they are proved by other evidence to have been used in

the commission of the offence. Similarly, the Bench of this Court has held in Public Prosecutor Vs. Oor Goundan alias Sommalai Goundan and

Another, that the statement

I have buried in the margin of the eastern ridge of my sugarcane garden the knife. If you come with me I will take and give it

is admissible. In Vellingiri Crl. R.C. No. 477 of 1948. Rajagopalan, J., has held that the statement

I sold the (dynamo) to the proprietor of a Soda factory near the Pillayar Temple in Anuppapalayam for Rs. 15

is admissible. No doubt he also observes:

Earlier in point of time was the statement of the accused that he had sold it to P.W. 4 was the fact deposed to P.W. 4. The question is, was it the

accused''s statement that led to the discovery of the sale by the accused to P.W. 4 ? That was a fact discovered by the Sub-Inspector as a result

of the statement in Ex. P-3 though proof of it in court came only subsequently with the statement made on oath by P.W. 4

It is the contention of Mr. Rajagopalachariar that in the above case the statement that"" I sold, etc."" was admitted because P.W.4 subsequently

spoke to the same and that the statement of the accused was only used to corroborate P.W.4''s evidence. I do not think that Rajagopalan, J.,

intended that ""I sold, etc."" is admissible because P.W.4 spoke to the same. The extent of the statement admissible u/s 27 does not depend upon

whether the extent serves to corroborate or not the other evidence in the case. The only limitation is that the extent must relate distinctly to the facts

discovered subject to its relevancy being proved by other evidence. The burial of the jewels of the accused in the pit becomes relevant only when

the jewels are proved to be stolen property. The statement

I buried the cloth bundle by the side of the pial of Khadar Sahib in a pit. I will show you the spot

by itself is innocuous. It is no more harmful than

I hid it (spear) and my stick in the rick of Venkatanarasu in the village. I will show you which is admitted by the Privy Council as the portion

admissible. It is only when the spear or the stick is proved to have been used in the commission of the offence the fact discovered is relevant.

Similarly only when the jewels are proved to be stolen, their burial in the pit by the accused becomes relevant. I therefore-hold the following

portions as admissible as regards accused 1:

I buried that cloth bundle by the side of the pial of Khadar Sahib in a pit. I will show you the spot.

As regards accused 3:

I buried the gold pannirubuddi and the hand kadiam in my backyard under a flower pot-in a pit. I will point out the spot :

I buried them (some more jewels) in my house in one corner of the kitchen. I will point out the place.

If the statement to the extent above mentioned are admissible then they clearly prove that the accused were in possession of the stolen articles

and they have not satisfactorily accounted for their possession. The conviction and sentence are therefore confirmed and the petitions are

dismissed.