Thursday, 27 December 2018

Whether conduct of accused is admissible in evidence?

 It is a settled legal position that the facts need not be self-probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the Accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the Accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of Maharashtra MANU/SC/1098/2014 : (2015) 1 SCC 253, in particular, paragraphs 23 to 29 thereof. The same read thus:

23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor MANU/PR/0049/1946 : AIR 1947 PC 67 has held thus: (IA p. 77) 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.

12. The expression 'provided that' together with the phrase 'whether it amounts to a confession or not' show that the Section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person Accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the Accused must be in police custody. The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the Accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the Accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.

13. At one time it was held that the expression 'fact discovered' in the Section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor MANU/LA/0128/1929 : AIR 1929 Lah 344; Ganu Chandra Kashid v. Emperor MANU/MH/0264/1931 : AIR 1932 Bom 286). Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the Accused as to this (see Pulukuri Kotayya v. King Emperor4; Udai Bhan v. State of U.P. MANU/SC/0144/1962 : AIR 1962 SC 1116 : (1962) 2 Cri. LJ 251 : 1962 Supp (2) SCR 830).

(Emphasis in original)

27. In the case at hand, as is perceptible, the recovery had taken place when the Appellant was Accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.

28. Additionally, another aspect can also be taken note of. The fact that the Appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) MANU/SC/0147/1978 : (1979) 3 SCC 90 wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash MANU/SC/0118/1971 : (1972) 1 SCC 249 held thus: (Prakash Chand case, SCC p. 95, para 8)

8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible Under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Code of Criminal Procedure. What is excluded by Section 162 of the Code of Criminal Procedure is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an Accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an Accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, Under Section 8 of the Evidence Act, irrespective of whether any statement by the Accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.

Criminal Appeal No. 1617 of 2011

Decided On: 24.10.2018

Asar Mohammad  Vs.  The State of U.P.

Hon'ble Judges/Coram:
A.M. Khanwilkar and L. Nageswara Rao, JJ.

Citation: AIR 2018 SC5264.
Read full judgment here: Click here
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