Sample – Indian Evidence Act

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Sample:    INDIAN    EVIDENCE     ACT      [Section 17 – 27]                                   

Section 17                   Admission defined

  • An admission is a statement
    • oral or documentary or contained in electronic form
      • which suggests any inference as to any fact in issue or relevant fact
      • which is made by specified persons under specified circumstances

Comments by DLA on section 17:

Q: What is an admission?

Ans:

  • Admission has been defined to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, mentioned in sections 18 to 21.

[Supreme Court in Central   Bureau   of   Investigation   v.   V.C. Shukla]

Section 18                   Admission by party to proceeding or his agent

  • Statements made by party to proceeding
  • or by an agent to any such party
    • whom Court regards as expressly or impliedly authorized to make them
  • are admissions

Section 19                   Persons whose position must be proved

  • Statements made by persons
    • whose position or liability it is necessary to prove as against any party to suit
  • are admissions
    • if such statements would be relevant as against such persons
      • in relation to such position or liability in a suit brought by or against them
    • and if they are made whilst the person making them occupies
      • such position or is subject to such liability

Illustration

  • A undertakes to collect rents for B
    • B sues A for not collecting rent due from C to B
    • A denies that rent was due from C to B
  • Statement by C that he owed B rent
    • is an admission
    • and is a relevant fact as against A
      • if A denies that C did owe rent to B

Section 20                   Persons expressly referred to by party to suit

  • Statements made by persons
    • to whom party to suit has expressly referred
    • for information in reference to a matter in dispute
  • are admissions

Illustration

  • The question is
    • whether a horse sold by A to B is sound
  • A says to B
    • ” Go and ask C, he knows all about it“
  • C’s statement is an admission

Section 21                   Proof of admissions against persons making them

  • Admissions are relevant
    • and may be proved
      • as against the person who makes them
      • or his representative in interest
  • but they cannot be proved
  • by or on behalf of the person who makes them
    • or by his representative in interest
  • except in following cases:

(1)

  • An admission may be proved by or on behalf of the person making it
    • when it is of such a nature that
      • if the person making it were dead
      • it would be relevant as between third persons u/s 32

(2)

  • An admission may be proved by or on behalf of the person making it
    • when it consists of a statement of existence of any state of mind or body, relevant or in issue
      • made at or about the time when such state of mind or body  existed
      • and is accompanied by conduct rendering its falsehood improbable

(3)

  • An admission may be proved by or on behalf of the person making it
    • if it is relevant otherwise than as an admission

Illustration (a)

  • The question between A and B is
    • whether a certain deed is or is not forged
  • A affirms that it is genuine, B that it is forged
  • A may prove a statement by B that the deed is genuine
    • and B may prove a statement by A that the deed is forged
  • but A cannot prove a statement by himself that the deed is genuine
    • nor can B prove a statement by himself that the deed is forged

Illustration (b)

  • A, the Captain of a ship, is tried for casting her away
  • Evidence is given to show that the ship was taken out of her proper course
  • A produces a book kept by him in ordinary course of his business
    • showing observations taken by him from day to day
    • indicating that the ship was not taken out of her proper course
  • A may prove these statements
    • because they would be admissible between third parties, if he were dead, u/s 32 clause (2)

Comments by DLA on section 21:

  • Section 17 defines  ‘admission’, Ss. 18 to 20 lay down what statements are admissions, and s. 21 deals with proof of admissions against persons making them.
  • Statements may be proved as admissions under Section 18 read with Section 21 of the Act provided they relate to ‘any fact in issue or relevant fact.’

Q: What is the impact of an admission?

Ans 1:

  • An admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act
  • Admissions are usually telling against the maker unless reasonably explained.
  • There is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore.

[Supreme Court in Bishwanath  Prasad  v.  Dwarka  Prasad]

Ans 2:

  • Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.
  • Admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.

[Supreme Court in Bharat Singh case]

Ans 3:

  • It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For example, statements in the Account books of a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person

[Supreme Court in Bhogilal Chunilal Pandya v. State of Bombay]

Q: Can part only of an admission be used against the maker of such admission?

Ans:

  • No.
  • If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only.

[Supreme Court in Aghnoo Nagesia  v. State of Bihar]

Section 22                   Oral admissions as to contents of documents

  • Oral admissions as to contents of a document
  • are not relevant
    • unless party proposing to prove them shows that
      • he is entitled to give secondary evidence of the contents
    • or unless genuineness of a document produced is in question

Section 24                   Confession caused by inducement, threat or promise

  • A confession made by an accused person
  • is irrelevant in a criminal proceeding
    • if the confession was caused by any inducement, threat for promise
      • having reference to the charge against the accused person
    • proceeding from a person in authority
    • sufficient to give the accused person reasonable grounds for supposing that
      • by making it he would gain an advantage or avoid an evil of temporal nature
      • in reference to the proceedings against him

Comments by DLA on section 24

Q: What is a confession?

Ans 1:

  • “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence.
  • An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession.”

          [Privy Council in Pakala Narayana v. Emperor [1939]

Ans 2:

  • Only voluntary and direct acknowledgement of guilt is a confession.

          [Supreme Court in Central   Bureau   of   Investigation   v.   V.C. Shukla    [1998]

Ans 3:

  •  A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged cannot amount to a confession.

          [Supreme Court in Veera Ibrahim  v.  State of Maharashtra  [1976]

Q: When is a person said to be “accused of an offence” as used in section 24?

Ans:

  • “Normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a magistrate competent to try or send to another magistrate for trial of the offence.

          [Supreme Court in  R.C. Mehta v. State of West Bengal [1970]

Q: When is the prohibition enacted u/s 24 attracted?

Ans:

  • To attract the prohibition enacted in Section 24 Evidence Act, these facts must be established:

(i)         that the statement in question is a confession;

(ii)        that such confession has been made by an accused person;

(iii)       that it has been made to a person in authority;

(iv)       that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority;

(v)       such inducement, threat or promise, must have reference to the charge  against the accused person;

(vi)      the inducement, threat or promise must in the opinion of Court be sufficient  to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to proceedings against him.

          [Supreme Court in Veera Ibrahim  v.  State of Maharashtra  [1976]

Q: Whether the oath administered by a custom officer to state the truth can vitiate the confession?

Ans:

  • While it may be conceded that a person summoned by an officer of customs to make a statement under Section 108 of the Customs Act is under compulsion of law to state the truth, the compulsion thereunder, assuming it amounts to a threat, does not proceed “from a person in authority” within the contemplation of Section 24 but emanates from law.
  • So, the confession if made is not vitiated

          [Supreme Court in Veera Ibrahim  v.  State of Maharashtra  [1976]

Section 25                   Confession to police officer not to be proved

  • No confession made to a police officer
    • shall be proved
    • as against a person accused of any offence

Section 26                  Confession while in custody of police

  • No confession made by any person
  • whilst he is in the custody of a police officer
    • unless it be made in immediate presence of a Magistrate
  • shall be proved as against such person

Comments by DLA on section 26:

Q: Can a confessional FIR be used against the informant-accused?

Ans:

  • If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act.
  • If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant.
  • But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.

          [Supreme Court in Aghnoo Nagesia  v. State of Bihar [1966]

Section 27                   Information received from accused, proved

  • Provided that when any fact is deposed to as discovered
    • in consequence of information
    • received from a person accused of any offence in 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

Comments by DLA on section 27

 Section 27 provides an exception to 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 the 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 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

          [Sir John Beaumont, Privy Council, in Pulukuri Kottaya   v.  Emperor  [1947 PC]

Q: What exactly is the meaning and scope of “fact discovered” in section 27?

Ans:

  •  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.

           [Sir John Beaumont, Privy Council, in Pulukuri Kottaya   v.  Emperor  [1947 PC]

An illustration to understand the scope of section 27

  • 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. But if to the statement the words be added “with which I stabbed A”, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

Note:  This illustration has been taken from Privy Council’s judgment in Pulukuri Kottaya   v.  Emperor and therefore is authentic.

Q: Which confessions are not admissible?

Ans:

  • Confessions made under the circumstances specified under section 24 and before persons specified in sections 25 and 26 are not admissible except under circumstances specified in section 27.

Rationale behind their inadmissibility

  • 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 [Pulukuri Kottaya   v.  Emperor]

Q: What is the difference between an admission and a confession?

Ans 1:

  • “The distinction between admissions and confessions is of considerable importance for two reasons.
  • Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to police officer, or was made at a time when the accused was in custody of a police officer. If a statement was made by the accused in the circumstance just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. It will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a police officer in the course of an investigation under Chapter XIV of CrPC.
  • Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between admission and a confession is of fundamental importance.”

           [Monir’s Law of Evidence]

Ans 2:

  • Only voluntary and direct acknowledgement of guilt is a confession, but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it as an ‘admission’ under section 21.

          [Supreme Court in Central   Bureau   of   Investigation   v.   V.C. Shukla    [1998]

***********

 

Case Law on sections 17-27 Evidence Act

1.    Bishwanath Prasad     v.        Dwarka Prasad               [1974 SC]

2.    Central  Bureau  of  Investigation   v.   V.C. Shukla   [1998 SC]

3.    Veera Ibrahim            v.         State of Maharashtra    [1976 SC]

4.    Aghnoo Nagesia          v.         State of Bihar                 [1966 SC]

5.    Pulukuri    Kottaya      v.       Emperor                          [1947 PC]

 

Case Law on section 21 Evidence Act

Bishwanath Prasad     v.      Dwarka Prasad     [1974 SC]

This appeal arises out of a suit for partition. The first two of the three points formulated for determination by the High Court reflect the controversy raised before us:

Whether the entire properties mentioned in Schedule C to the plaint are joint family       properties liable to partition….

The case of the first (contesting) defendant, who is the first respondent before us now, is that these items of property exclusively belonged to him. The trial Court has accepted this case and the High Court has affirmed this finding. The foundation for these concurrent findings is the admissions made by the first plaintiff and the eighth defendant, the father of the plaintiff, in depositions in an earlier suit, Title Suit No. 61 of 1945, as well as similar admissions made in the written statement filed in that suit by the present eighth defendant (who was first defendant there) together with the present plaintiffs. The inference fluently drawn by the Courts below from these admissions is that the said property belongs to the first defendant.

Admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out.

Counsel for the appellants strenuously urged that the fatal admissions used against him have prejudiced him for many reasons. His further grievance is that these admissions were not put to his client, the first plaintiff, when he was in the witness box; nor was the eighth defendant summoned for examination by the first defendant to give him an opportunity to explain the admissions.

Therefore, Counsel contended that he was seriously harmed by the surprise reliance on statements attributed to his clients without extending a fair opportunity to them to offer their explanation and neutralise the effect of the admissions. Counsel drew our attention to Section 145 of the Indian Evidence Act

There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act.

This distinction has been clearly brought out in the ruling in Bharat Singh case [1966 SC]. This Court disposed of a similar argument with the following observations:

Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

The appeal must, therefore, fail and is hereby dismissed.

* * * * *

 

Case Law on section 21 Evidence Act

Central   Bureau   of   Investigation   v.   V.C. Shukla         [1998 SC]

Section 3 [Evidence Act] declares that a fact is relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts; and those provisions are to be found in Sections 6 to 55 appearing in Chapter II. Section 5, with which Chapter II opens, expressly provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and the facts declared relevant in the aforesaid sections, and of no others.

Lastly, comes the question whether the entries are ‘admissions’ within the meaning of Section 17 of the Act so as to be admissible as relevant evidence under Section 21; and if so, as against whom can the entries be proved.

In Section 17, admission has been defined to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, mentioned in the subsequent Sections (Sections 18 to 21). Section 18 provides that statements made by a party to the proceeding or by an agent to any such party, whom the Court regards has expressly or impliedly authorised by him to make them are admissions.

From a combined reading of the above Sections it is manifest that an oral or documentary statement made by a party or his authorised agent, suggesting any inference as to any fact in issue or relevant fact may be proved against a party to the proceeding or his authorised agent as ‘admission’ but, apart form exceptional cases (as contained in Section 21), such a statement cannot be proved by or on their behalf.

While on this point the distinction between ‘admission’ and ‘confession’ needs to be appreciated. In absence of any definition of ‘confession’ in the Act, judicial opinion, as to its exact meaning, was not unanimous until the judicial Committee made an authoritative pronouncement about the same in Pakala Narayana v. Emperor [1939 PC] with these words:-

“[A] confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession.”

It is thus seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it as an ‘admission’ under section 21.

The law in this regard has been clearly – and in our considered view correctly – explained in Monir’s Law of Evidence. The relevant passage reads as under:-

“The distinction between admissions and confessions is of considerable importance for two reasons.

Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to police officer, or was made at a time when the accused was in custody of a police officer. If a statement was made by the accused in the circumstance just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. It will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a police officer in the course of an investigation under Chapter XIV of CrPC.

Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between admission and a confession is of fundamental importance.”

Mr. Altaf Ahmed urged that it being a settled principle of law that statements in account books of a person are ‘admissions’ and can be used against him even though those statements were never communicated to any other person, the entries would be admissible as admission of J.K. Jain, who made them. In support of his contention he relied upon the following passage from the judgment of his Court in Bhogilal Chunilal Pandya v. State of Bombay [1959  SC]:

“The first group of sections in the Act in which the word ‘statement’ occurs, are Ss. 17 to 21, which deal with admissions. Section 17 defines the word ‘admission’, Ss. 18 to 21 lay down what statements are admissions, and s. 21 deals with proof of admissions against persons making them. The words used in Ss. 18 to 21 in this connection are ‘statements made by’.

It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For example, statements in the Account books of a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person. Illustration (b) of s. 21 also shows that the word ‘statement’ used in these sections does not necessarily imply that they must have been communicated to any other person. In the Illustration in question entries made in the book kept by a ship’s captain in the ordinary course of business are called statements, though these entries are not communicated to any other person. An examination, therefore, of these sections show that in this part of the Act the word ‘statement’ has been used in its primary meaning namely, ‘something that is stated’ communication is not necessary in order that it may be a statement.”.

Even if we are to accept the above contentions, the entries, which are statements as held by this Court in Bhogilal Chunilal and, being ‘admissions’ – and not ‘confession’ – cannot be used as against Shri Advani or Shri Shukla. However, as against Jains the statements may be proved as admissions under Section 18 read with Section 21 of the Act provided they relate to ‘any fact in issue or relevant fact.’ Needless to say, what will be ‘facts in issue’ or ‘relevant facts’ in a criminal trial will depend upon, and will be delineated by, the nature of accusations made or charges levelled against the person indicated.

In the two cases with which we are concerned in these appeals, the gravamen of the charges which were framed against Jains in one of them and were to be framed in the other, pursuant to the order of the trial Court, is that they entered into two separate agreements; one with Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were ‘public servants’ and in pursuance of the said agreements payments were actually made to them. Thereby the Jains committed the offence of conspiracy under Section 120B of the Indian Penal code; and under Section 12 of the Prevention of Corruption Act, 1988 (P.C. Act for short), in that, they abetted the commission of offences under Section 7 of the Act by Shri Shukla and Shri Advani.

It is seen that the prosecution sought to prove that there were two separate conspiracies, in both of which Jains together figured as the common party and Shri Advani or Shri Shukla, as the other. Since we have already found that the prosecution has not been able to make out a prima facie case to prove that Shri Advani and Shri shukla were parties to such conspiracies, the charges of conspiracy, as framed/sought to be framed, cannot stand also against the Jains, for the simple reason that in a conspiracy there must be two parties. Resultantly, the statements cannot be proved as admission of Jains of such conspiracy.

* * * * *

 

Case Law on section 24 Evidence Act

Veera Ibrahim     v.     State of Maharashtra    [1976 SC]

Veera Ibrahim, appellant was accused No. 2 in the complaint filed by Assistant Collector of Customs, Bombay before the Chief Presidency Magistrate for his prosecution in respect of offences under Section 135 (a) and 135 (b) of the Customs Act, 1962. The trial Magistrate convicted both the accused on all the three charges.

The first contention canvassed by the Counsel is that on the facts and circumstances of the case, the appellant’s statement recorded under Section 108 of the Customs Act, 1962, on the foot of which the appellant has been convicted, was hit by clause (3) of Article 20 because at the time of making that statement, the appellant was “accused of an offence” under Section 124 of the Bombay Police Act, and the statement was obtained under compulsion of law.

Stress has been placed on the fact that the appellant was, in fact, arrested by the police on a charge under Section 124 of the Bombay Police Act and the goods were seized under a panchnama, prepared by them in the course of investigation.

Clause (3) of Article 20 provides:

“No person accused of any offence shall be compelled to be a witness against himself.”

From an analysis of this clause, it is apparent that in order to claim the benefit of the guarantee against testimonial compulsion embodied in this clause, it must be shown, firstly, that the person who made the statement was “accused of any offence”; secondly, that he made this statement under compulsion.  By now it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in his prosecution, would fall within its ambit.

In R.C. Mehta v. State of West Bengal [1970 SC], this point came up for consideration in the context of a statement recorded by an officer of customs in an enquiry under Section 171-A of the Sea Customs Act. One of the contentions raised was, that a person against whom such an enquiry is made is a “person accused of an offence’, and on that account, he cannot be compelled to be a witness against himself and the statement obtained or evidence collected under the aforesaid provision by the officer of customs is inadmissible.

The Court pointed out the circumstances, the existence of which is ordinarily necessary to clothe a person with the character of a “person accused of an offence” :

“Normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a magistrate competent to try or send to another magistrate for trial of the offence. Where a customs officer arrests a person and informs that person of the grounds of his arrest [which he is bound to do under Article 22(1) of the Constitution] for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act and punishable at the trial before a magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.”

The abovementioned observations are a complete answer to the contention of the appellant. In the light of these principles, it is clear that when the statement of the appellant was recorded by the Customs Officer under Section 108, the appellant was not a person “accused of any offence” under the Customs Act, 1962. An accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135(a) and Section 135(6) of the Customs Act.

True, that the appellant was arrested by the police on December 12, 1967 on suspicion of having committed an offence under Section 124 of the Bombay Police Act and a panchnama of the packages in the truck was also prepared. But the factual ingredients of that offence are materially different from those of an offence under the Customs Act.

Even in respect of that offence, the police did not register any case or enter any F.I.R. which normally furnishes a foundation for commencing a police investigation. The police did not open the packages or prepare inventories of the goods packed therein. Indeed, the police appear to have dropped further proceedings. They informed the customs authorities, who opened the packages, inspected the goods and on finding them contraband goods, seized them under a panchnama. The customs authorities called the appellant and his companion to the customs house, took them into custody, and after due compliance with the requirements of law, the Inspector of Customs questioned the appellant and recorded his statement under Section 108 of the Customs Act. Under the circumstances it was manifest that at the time when the customs officer recorded the statement of the appellant, the latter was not formally “accused of any offence. The High Court was therefore right in holding that the statement recorded by the Inspector of Customs was not hit by Article 20(3) of the Constitution.

The next question to be considered is, whether this statement was hit by Section 24 of the Evidence Act. The contention is that this statement was obtained under compulsion of law inasmuch as he was required to state the truth under threat of prosecution for perjury.

To attract the prohibition enacted in Section 24, Evidence Act, these facts must be established:

(i)         that the statement in question is a confession;

(ii)        that such confession has been made by an accused person;

(iii)       that it has been made to a person in authority;

(iv)       that the confession has been obtained by reason of any inducement, threat or promise proceeding from  a person in authority;

(v)        such inducement, threat or promise, must have reference to the charge  against the accused person;

(vi)       the inducement, threat or promise must in the opinion of Court be sufficient  to give the accused person grounds, which would appear to him reasonable,  for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to proceedings against him.

In the present case, facts (i), (iv) and (vi) have not been established. Firstly, the statement in question is not a “confession” within the contemplation of Section 24. It is now

well-settled that a statement in order to amount to a “confession” must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged cannot amount to a confession.

A perusal of the statement Ex. I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter. Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions. The deponent claimed to be an innocent traveller in the truck when he said:

I did not ask Mullaji (driver) what goods were being loaded in his lorry … Mullaji was      only my friend and I was not aware of any of his mala fide activities.

Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence. To bring home an offence under Section 135 of the Customs Act, in addition to the facts admitted in Ex. I, it had to be established further that these goods were dutiable or contraband goods.

For these reasons, it could be said beyond doubt, that the statement Ex. I was not a “confession” within the meaning of Section 24, Evidence Act.

Secondly, it has not been shown that the customs officer – though a person in authority – had offered any inducement or held out any threat or promise to the appellant.

While it may be conceded that a person summoned by an officer of customs to make a statement under Section 108 of the Customs Act, is under compulsion of law to state the truth, the compulsion thereunder, assuming it amounts to a threat, does not proceed “from a person in authority” within the contemplation of Section 24 but emanates from law.

Thirdly, the mere fact that the Inspector of Customs had before recording the statement, warned the deponent of the possibility of his prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling.

In view of what has been said above, we have no hesitation in holding that the statement Ex. I, was not barred under Section 24, Evidence Act. The statement Ex. P-1 was clearly admissible under Section 21, Evidence Act as an admission of incriminating facts.

Lastly, Mr Chaudhury tried to contend that the incriminating facts admitted in Ex. I taken along with the other facts appearing in the evidence of prosecution witnesses, were insufficient to establish an offence under Section 135, Customs Act against the appellant.

We are unable to accept this contention. In Ex. I which was proved by PW 4, it is admitted that these packages which were later found to contain contraband goods by the customs authorities, were surreptitiously loaded in the truck under cover of darkness , in the presence of the appellant, and thereafter the first accused took the wheel, while the appellant sat by his side in the truck.

In the result, the appeal fails and is dismissed.

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Case Law on sections 25-27

Aghnoo Nagesia     v.     State of Bihar                 [1966 SC]

The appellant was charged under Section 302 of the Indian Penal Code for murdering his aunt, Ratni, her daughter, Chamin, her son-in-law, Somra and Dilu, son of Somra. He was convicted and sentenced to death by the Judicial Commissioner of Chotanagpur. The High Court of Patna accepted the death reference, confirmed the conviction and sentence and dismissed the appeal preferred by the appellant.

The prosecution case is that on August 11, 1963 between 7 a.m. and 8 a.m. the appellant murdered Somra in a forest known as Dungijharan Hills and later Chamin in Kesari Garha field and then Ratni and Dilu in the house of Ratni at Village Jamtoli.

The first information of the offences was lodged by the appellant himself at Police Station Palkot on August 11, 1963 at 3.15 p.m. The information was reduced to writing by the officer-in-charge, Sub-Inspector and the appellant affixed his left thumb impression on the report. The Sub-Inspector immediately took cognisance of the offence, and arrested the appellant. The next day, the Sub-Inspector in the company of the appellant went to the house of Ratni, where the appellant pointed out the dead bodies of Ratni and Dilu and also a place in the orchard of Ratni covered with bushes and grass, where he had concealed a tangi. The appellant then took the Sub-Inspector and witnesses to Kasiari garha khet and pointed out the dead body of Chamin lying in a ditch covered with Ghunghu. The appellant then took the Sub-Inspector and the witnesses to Dungijharan Hills, where he pointed out the dead body of Somra lying in the slope of the hills to the north. The Sub-Inspector also recovered from the appellant’s house a chadar stained with human blood. The evidence of PW 6 shows that the appellant had gone to the forest on the morning of August 11, 1963.

The medical evidence discloses incised wounds on all the dead bodies. The injuries were caused by a sharp-cutting weapon such as a tangi. All the four persons were brutally murdered.

There is no eyewitness to the murders. The principal evidence against the appellant consists of the first information report, which contains a full confession of guilt by the appellant. If this report is excluded, the other evidence on the record is insufficient to convict the appellant. The principal question in the appeal is whether the statement or any portion of it is admissible in evidence.

The first information report reads as follows:

“My name is Aghnu Nagesia. (1) My father’s name is Lodhi Nagesia. I am a resident of Lotwa, Tola Jamtoli, Thana Palkot, District Ranchi. Today, Sunday, date not known, at about 3 p.m. I having come to the P.S. make statement before you the S.I. of Police (2) that on account of my Barima (aunt) Mussammat having given away her property to her daughter and son-in-law quarrels and troubles have been occurring among us. My Barima has no son and she is a widow. Hence on her death we shall be owners of her lands and properties and daughter and son-in-law of Barima shall have no right to them. She lives separate from us, and lives in her house with her daughter and son-in-law and I live with my brother separately in my house. Our lands are separate from the time of our father.

(3) Today in the morning at about 7-8 a.m. I had gone with a tangi to Duni Jharan Pahar to cut shrubs for fencing. I found Somra sitting alone there who was grazing cattle there. (4) Seeing him I got enraged and dealt him a tangi blow on the filli (calf) of right leg, whereby he toppled down on the ground. Thereupon I dealt him several Chheo (blows) on the head and the face, with the result that he became speechless and died. At that time there was none near about on that Pahar. (5) Thereafter I came to the Kesari Garu field where Somra’s wife Chamin was weeding out grass in the field. (6) I struck her also all of a sudden on the head with the said tangi whereby she dropped down on the ground and died then and there. (7) Thereafter I dragged her to an adjoining field and laid her in a ditch to the north of it and covered her body with Gongu (Pala ke Chhata) so that people might not see her. There was no person then at that place also.

(8) Thereafter I armed with that tangi went to the house of my Barima to kill her. When I reached there, I found that she was sitting near the hearth which was burning. (9) Reaching there all of a sudden I began to strike her on the head with tangi whereupon she dropped down dead at that very place. (10) Near her was Somra’s son aged about 3-4 years. (11) I also struck him with the tangi. He also fell down and died. (12) I finished the line of my Barima so that no one could take share in her properties. (13) I hid the tangi in the jhari of my Barima’s house.

(14) Later on I narrated the occurrence to my chacha (father’s brother) Lerha that I killed the aforesaid four persons with tangi. After sometime (15) I started for the P.S. to lodge information and reaching the P.S. I make this statement before you. (16) My Barima had all along been quarrelling like a Murukh (foolish woman) and being vexed, I did so. (17) All the dead bodies and the tangi would be lying in those places. I can point them out. (18) This is my statement. I got it read over to me and finding it correct, I affixed my left thumb-impression.”

We have divided the statement into 18 parts. Parts 1, 15 and 18 show that the appellant went to the police station to make the report. Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 disclose the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi and his ability to point out places where the dead bodies and the tangi were lying. Part 14 discloses the previous confession by the appellant. Broadly speaking, the High Court admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and 18.

On behalf of the appellant, it is contended that the entire statement is a confession made to a police officer and is not provable against the appellant, having regard to Section 25 of the Indian Evidence Act, 1872. On behalf of the respondent, it is contended that Section 25 protects only those portions of the statement which disclose the killings by the appellant and the rest of the statement is not protected by Section 25.

Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading “Admissions”. Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law.

Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: “No confession made to a police officer, shall be proved as against a person accused of an offence.” The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer.

Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section.

Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.

Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant. But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.

The Indian Evidence Act does not define “confession”. In Pakala Narayanaswami v. King-Emperor [1939 IA] Lord Atkin [Judicial Committee] observed:

“(N)o statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession.”

Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only.

The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.

Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.

If proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under Section 304-A of the Indian Penal Code and a statement made by him to a police officer that “I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; 1 made no attempt to stop the car; the car knocked down A.” No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under Section 304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement.

Again, take a case where a single sentence in a statement amounts to an admission of an offence. ‘A’ states “I struck ‘B’ with a tangi and hurt him.” In consequence of the injury ‘B’ died. ‘A’ committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negative the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.

If the confession is caused by an inducement, threat or promise as contemplated by Section 24 of the Evidence Act, the whole of the confession is excluded by Section 24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by Section 24. To hold that the proof of the admission of other incriminating facts is not barred by Section 24 is to rob the section of its practical utility and content. Similarly, Sections 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence.

A little reflection will show that the expression “confession” in Sections 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, Section 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.

If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.

We think, therefore, that save and except Parts 1, 15 and 18 identifying the appellant as the maker of the first information report and save and except the portions coming within the purview of Section 27, the entire first information report must be excluded from evidence.

Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer information which may be used as evidence against him may be deemed to have submitted himself to the custody of the police officer within the meaning of Section 27, there is conflict of opinion.

For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant’s house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963.

This evidence is not sufficient to convict the appellant of the offences under Section 302 of the Indian Penal Code. In the result, the appeal is allowed, the conviction and sentence passed by the Courts below are set aside, and the appellant is directed to be set at liberty forthwith.

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Case Law on sections 27

Pulukuri    Kottaya      v.       Emperor        [1947 PC]

Sir John Beaumont

This is an appeal by special leave against the judgment and order of the High Court of Judicature at Madras, dated October 22, 1945, dismissing an appeal against the judgment and order of the Court of Sessions, dated August 2, 1945.

The offence charged was of a type common in many parts of India in which there are factions in a village, and the members of one faction are assaulted by members of the other faction and, in the prosecution which results, the Crown witnesses belong to the party hostile to the accused; which involves that their evidence requires very careful scrutiny.

The question which involves construction of S.27 of the Indian Evidence Act will now be considered.

Section 27, which is not artistically worded, provides an exception to 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 the 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 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 information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is 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, 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 S. 27, little substance would 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 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 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 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. But if to the statement the words be added “with which I stabbed A”, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into S. 27 something which is not there, and admitting in evidence a confession barred by S. 26. Except in cases in which the possession or concealment of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof and the other links must be forged in manner allowed by law.

Statement made by accused Inala Sydayya on being arrested.

“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 Boddupati 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 hands. 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 instigation of Pulukuri Kotayya”.

The whole of that 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.

A confession of accused No. 3 was deposed to by the Police Sub-Inspector, who said that accused No. 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.”

The first sentence must be omitted.

The position therefore, is that in this case evidence has been admitted which ought not to have been admitted, and the duty of the Court in such circumstances is stated in S. 167 of the Indian Evidence Act. It was therefore, the duty of the High Court in appeal to apply its mind to the question whether, after discarding the evidence improperly admitted, there was left sufficient to justify the convictions. The Judges of the High Court did not apply their minds to this question because they considered that the evidence was properly admitted, and their Lordships propose therefore, to remit the case to the High Court of Madras, with directions to consider this question.

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