A similar situation also arose before the Gujarat High Court in the case of Ramkishore Bharatsinh Yadav Vs. State of Gujarat and another 2024 SCC OnLine Guj 3121 wherein, it has been observed as under:
“22. It is an admitted fact that at the time of making
confessional statement during the process of pointing out
and demonstration panchnamas, the appellant-accused was
admittedly in the police custody. Moreover, considering the
fact that nothing had been discovered or recovered through
these panchanamas, we are of the opinion that the trial
court, in considering these evidence for convicting the
appellants-accused, has fell in error, since the same is
inadmissible.” {Para 23}
24. To put it all together, a demonstration shown by an accused depicting the manner in which an offence is committed by him is hit by Section 25 of the Act and for the reasons stated above, it is not admissible even under Section 27 of the Act as an exception to Section 25 of the Act.
25. The learned Judge also observed that some part of the
demonstration made by the petitioners which relates to the
subsequent conduct of the petitioners is admissible in evidence
under Section 8 of the Act. No doubt, subsequent conduct of an
accused is relevant if it influences or is influenced by any fact in
issue or relevant fact. However, the learned Judge failed to
consider that the demonstration shown by the petitioners to the
police as to their conduct is admissible against them under Section 8 of the Act only to the extent of its non-confessional portion. Meaning thereby, any evidence showing the conduct of an accused must first overcome the bar created by Section 25 of the Act and only then it can be relied upon under Section 8 of the Act. (See: Bheru Singh Vs. State of Rajasthan 1994 (2) SCC 467 and Aghnoo Nagesia Vs. State of Bihar 1965 SCC OnLine SC 109. In the present case, the entire demonstration panchanama is hit by Section 25 of the Act. Therefore, demonstration made by the petitioners to show the manner in which the offence was committed by them is not admissible under Section 8 of the Act even to show subsequent conduct.
26. To conclude, the learned Additional Sessions Judge has not considered these aspects and erroneously overruled the objection of the petitioners. Therefore, the orders dated 08.10.2024 and 14.11.2024 passed by the learned Additional Sessions Judge, Buldhana in Sessions Trial No.24 of 2022 are hereby set aside. The objections of the petitioners are sustained. Accordingly, the petition succeeds.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.49 OF 2025
Rahul S/o Kisan Jaybhaye, Vs The State of Maharashtra
CORAM: M.W. CHANDWANI, J.
PRONOUNCED ON : 11.07.2025
Citation: 2025:BHC-NAG:7427
1. Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsels for the parties.
2. The petition challenges the orders dated 08.10.2024
and 14.11.2024 passed by the learned Additional Sessions Judge,
Buldhana in Sessions Trial No.24 of 2022 whereby, objections to
the admissibility of the portion of testimony of PW4-Gajanan
Laxman Ambhore raised during his examination-in-chief were
overruled.
3. The petitioners are indicted for the offences
punishable under Sections 302, 394, 201 read with Section 34 of
the Indian Penal Code alongwith other provisions of the Arms Act.
During trial, the prosecution sought to examine PW4-Gajanan
Ambhore, a panch to various memorandum panchanamas and the
demonstration panchanama as well. On 08.10.2024, when the
testimony of PW4- Gajanan Ambhore was being recorded, the
petitioners objected to the admissibility of some portion of the
testimony with regard to the Demonstration Panchanama on the
premise that it is hit by Section 25 of the Indian Evidence Act,
1872 (for short “the Act”). The objection was overruled by the trial
Court. On 19.10.2024, when his further examination-in-chief was
being recorded, the petitioners also objected to another portion of
the testimony with regard to the demonstration on the same
ground. The trial Court by another order dated 14.11.2024
overruled the said objection as well. Dissatisfied with rejection of
the objections by the learned Additional Sessions Judge, this
petition came to be filed.
4. Shri Kalwaghe, learned counsel for the petitioners
strenuously argued that the demonstration panchanama by virtue
of which the prosecution tried to show that the petitioners
demonstrated the manner in which the crimes were committed by
them does not qualify under Section 27 of the Act so as to make it
admissible, since it does not lead to any discovery. According to
him, the learned trial Court did not consider this aspect and has
erroneously recorded the testimony of PW4-Gajanan Ambhore.
The testimony of PW4-Gajanan where he states that the petitioners
informed in his presence that they had committed the offence and
they will demonstrate the acts done by them by escorting the
panchas to the spot as well as the panchanama recording the
demonstration made by the petitioners as to how they committed
the offence is a confession hit by Sections 25 and 26 of the Act.
5. Shri Kalwaghe would submit that the learned trial
Court relied on the portion of the decision in the case of Pulukuri
Kotayya and others Vs. King-Emperor 1, which was in fact, the
submission of the prosecution and not the findings of the Privy
1 1946 SCC OnLine PC 47
Council. On the contrary, the findings in the decision of Pulukuri
Kotayya (supra) support the defence. According to him, a
demonstration panchanama is not admissible in evidence and
therefore, evidence in respect of the said panchanma should not
have gone on record. To buttress his submissions, he seeks to rely
on the decisions in the case of Pulukuri Kotayya (supra), Perumal
Raja alias Perumal Vs. State, represented by Inspector of Police 1
and the decision of this Court in the case of Ajijkhan Mohd. Khan
Pathan Vs. State of Maharashtra 2.
6. Conversely, Shri Chauhan, learned Senior Advocate-
Public Prosecutor, vehemently objected to the submissions made
by the learned counsel for the petitioners. According to him,
though the learned Additional Sessions Judge relied on the portion
of the argument of the prosecution presuming it to be the verdict
of the Privy Council but the ultimate findings of the learned trial
Court overruling the objection of the petitioners are legally correct.
He further submitted that discovery of a fact pursuant to the
information received is admissible under the provisions contained
in Section 27 of the Act which is an exception to the general rule.
1 2024 SCC OnLine SC 12
2 2023 SCC OnLine Bom 2035
7. Having heard the learned counsels for the respective
parties and having gone through the record, it is revealed that
PW4-Gajanan Ambhore, whose deposition was being recorded by
the trial Court, is a panch witness to various panchanamas
including the demonstration panchanama dated 30.11.2021. After
deposing about other articles which were recovered prior to
30.11.2021, this witness proceeded to depose about the
memorandum panchanama dated 30.11.2021. He deposed that
the petitioners had informed in his presence that on 16.11.2021,
they had been to Anand Electronics and they are willing to
demonstrate the acts committed by them by visiting the spot of
incident. The counsel for the petitioners objected to this portion of
the deposition contending that it is not admissible in evidence
since it is done in presence of the police. The learned Additional
Sessions Judge by order dated 08.10.2024 overruled the objection
holding that this is not a confession.
8. Likewise, in para 24 of the testimony, PW4- Gajanan
Ambhore further deposed as to how the petitioners informed and
demonstrated to the police the manner in which they committed
the crime. This portion of his testimony was also objected to by the
petitioners contending that it is hit by Section 25 of the Act. The
learned Additional Sessions Judge by order dated 14.11.2024
overruled this objection as well.
9. In the impugned order dated 14.11.2024, the learned
Additional Sessions Judge opined that weapons and other articles
have been recovered at the instance of the petitioners vide seizure
panchanma Exhs.84, 25 and 86 and the prosecution wants further
evidence with regard to the manner in which the accused persons
have committed the offence. The learned Additional Sessions
Judge quoted some portion of the judgment of Pulukuri Kotayya
(supra) which is reproduced as under:
“In this case, therefore, where the statement is that a stick
and a spear have been hidden, once they are discovered
you can then bring in any part of that statement which
shows how, when and in what circumstances that spear
and stick were used and by whom they were used in the
commission of offence. …”
Relying on the above portion of the decision in the
case of Pulukuri Kotayya (supra), the learned Additional Sessions
Judge further opined that the observation in the decision by the
Judges mentioning ‘when’, ‘in what circumstances’ and ‘by whom’
are significant words appearing in such observations which
indicate that the prosecution is entitled to bring the evidence in
order to establish the fact as to ‘when’, ‘in what circumstances’ and
‘by whom’ the offence in question was committed and therefore,
the demonstration panchanama is not hit by Section 25 of the Act.
10. With the assistance of the learned counsel for the
petitioners as well as the learned Senior Advocate-Public
Prosecutor for the respondent/State, I have gone through the
decision of Pulukuri Kotayya (supra) rendered by the Privy
Council. What has been quoted by the learned Judge is the
submission of the prosecution and not the observations made by
the Privy Council.
11. It is a settled position of law that Sections 25 and 26
of the Act make a confession made by an accused of an offence to
a police officer while he is in custody inadmissible unless it is
made before a Magistrate. Whereas, Section 27 is an exception to
Sections 25 and 26 of the Act. It makes the information given by
an accused to police admissible, only if it leads to discovery of a
distinct fact. Section 27 of the Act runs as under:
“27. How much of information received from accused may
be proved.––Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a policeofficer,
so much of such information, whether it amounts to
a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.”
12. Undoubtedly, Section 27 of the Act is an exception to
Sections 25 and 26 of the Act and makes the information given by
an accused of an offence to a police officer whether it is a
confession or otherwise admissible, provided that the said
information is followed by discovery of a distinct fact in
consequence of the information received from the accused. The
basic idea embedded in this section is the doctrine of confirmation
by subsequent event. The doctrine is found on the principle that, if
any fact is discovered on the strength of any information received
from an accused, such a discovery is a guarantee that the
information supplied by the accused is true.
13. The history of case laws on the subject unfolds
divergent views and approaches. The divergence was mainly on
the issue as to whether the facts contemplated by Section 27 of the
Act are only physical/material objects or mental facts disassociated
from the recovery of physical object.
14. The Privy Council way back in the year 1946-47 in the
decision of Pulukuri Kotayya (supra) which has been described as
a locus classicus has explained what is meant by the phrase ‘fact
discovered’ used in Section 27 of the Act. The relevant extracts
from para 10 of the decision is reproduced as under:
“Clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which
in such information is required to relate.”
Elucidating the scope of this section, the Privy Council
speaking through Sir John Beaumont said :
“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.”
15. The Privy Council, while discussing the majority view
taken in the case of Sukhan Vs. Emperor 1that the expression ‘fact’
in Section 27 of the Act should be restricted to a material object,
extended the expression ‘fact’ from discovery of object to the
extent that it also covers mental facts which must relate to the
object recovered. The relevant portion of the decision is
reproduced as under:
“…..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…..”
16. Indisputably, the decision in the case of Pulukuri
Kotayya (supra) is an authority for the preposition ‘discovery of
1 AIR 1929 Lah 344
fact’. The Privy Council after discussing a series of decisions
observed that discovery of a fact cannot be restricted to an object
produced or found. It includes the place from which the object was
produced, knowledge of the accused as to it, provided that the
information given relates distinctly to the object discovered.
17. Later in the year 1972, the Supreme Court in the case
of Himachal Pradesh Administration Vs. Shri Om Prakash 1 has
observed that information furnished by the accused that he
purchased the dagger from a witness and thereafter, pointing the
witness out cannot be termed to be discovery of a fact within the
meaning of Section 27 of the Act; particularly in view of the fact
that, even when the accused took the police to the said witness
and pointed the witness out, the dagger was not recovered
consequent to such information. The Supreme Court repelling the
argument of the prosecution has observed that a ‘witness’ cannot
be said to be discovered if nothing is found or recovered from him
as a consequence of the information furnished by the accused and
the information which discloses the identity of the witness without
recovery of the object will not be admissible under Section 27 of
the Act. What makes the information leading to the discovery of
the witness admissible is the discovery from him of the thing sold
1 1972 (1) SCC 249
to him or hidden or kept with him which the police did not know
until the information was furnished to them by the accused.
18. The controversy is put to the rest, in the decision of
the Supreme Court in the case of State (N.C.T. Of Delhi) vs Navjot
Sandhu@ Afsan Guru 1 wherein, after discussing various decisions
of the Privy Council and the Supreme Court in the cases of Sukhan
Vs. Emperor (supra), Pulukuri Kotayya (supra), Mohd. Inayatullah
Vs. State of Maharashtra 2, State of Maharashtra Vs. Damu 3 and
Shri Om Prakash (supra) the Supreme Court accepted the
submission of the defence and affirmed that a fact discovered
within the meaning of Section 27 of the Act must be some concrete
fact to which the information directly relates. The Supreme Court
in explicit words has observed that, the fact discovered should
refer to a material / physical object and not to a pure mental fact
relating to a physical object disassociated from the recovery of the
physical object.
19. In a recent decision of the Supreme Court in the case
of Perumal Raja alias Perumal (supra), while discussing the scope
of Section 27 of the Act, it has been observed that the factum of
1 2005 SCC OnLine SC 1132
2 (1976) 1 SCC 828
3 (2000) 6 SCC 269
discovery combines both the physical object as well as the mental
consciousness of the informant accused in relation thereto.
20. The law as of today that emerges from the above said
decisions is that, the expression ‘fact discovered’ used in
Section 27 of the Act undoubtedly, is not restricted to a physical or
material fact which can be pursued by senses and that it also
includes a mental fact, provided that the mental fact must relate to
recovery of the object which is discovered. To put it differently, for
making the statement/information supplied by the accused of an
offence to a police officer admissible in evidence, there must be
discovery of a material object and only then the mental fact
leading to the concealment or disposal of the object which is
brought to light by the accused will be admissible under Section 27
of the Act. Anything merely related to the fact in general will not
be admissible on its own. A mental fact which is not related to the
recovery of the object/physical material will not constitute as facts
discovered. Standalone mental facts disassociated from the
discovery of object / material cannot be said to be a discovery of
fact within the meaning of Section 27 of the Act.
21. Here, the information was supplied by the petitioners
to PW4-Gajanan Ambhore by stating that they are going to
demonstrate in what manner the offence was committed.
Subsequently, by demonstrating all the acts, they showed how
they committed the offence. The prosecution claims that there is
discovery of fact as to the manner in which the offence was
committed. This argument does not sustain for more than one
reasons. Firstly, there is no discovery of any object and the mental
facts disclosed by the petitioners are not in respect of any object
which is discovered consequent to the information given by them
on 30.11.2021. Secondly, the word ‘discovery’ denotes discovery
of something which is already in existence. Here, the facts which
are claimed to be discovered were not readily available anywhere
but, have been disclosed and demonstrated by the petitioners by
visiting the spot of incident which was already known to the
police. Lastly, the prosecution has come-up with a case that the
incident was recorded in the CCTV footage. This means that the
prosecution already knew the manner in which the offence was
committed. Therefore, even if anything was discovered with regard
to the manner in which the offence was committed, it will not be
regarded as discovery of a distinct fact within the meaning of
Section 27 of the Act. By no stretch of imagination, the
demonstration by the petitioners showing the manner in which the
offence was committed can be said to be a fact discovered within
the meaning of Section 27 of the Act.
22. It is apt to note here that the Division Bench of this
Court in the case of Ajijkhan Mohd. (supra), relied upon by the
petitioners has observed while making a passing remark that the
basic nature of a demonstration panchanama is inadmissible.
23. A similar situation also arose before the Gujarat High
Court in the case of Ramkishore Bharatsinh Yadav Vs. State of
Gujarat and another 2024 SCC OnLine Guj 3121 wherein, it has been observed as under:
“22. It is an admitted fact that at the time of making
confessional statement during the process of pointing out
and demonstration panchnamas, the appellant-accused was
admittedly in the police custody. Moreover, considering the
fact that nothing had been discovered or recovered through
these panchanamas, we are of the opinion that the trial
court, in considering these evidence for convicting the
appellants-accused, has fell in error, since the same is
inadmissible.”
24. To put it all together, a demonstration shown by an
accused depicting the manner in which an offence is committed by him is hit by Section 25 of the Act and for the reasons stated
above, it is not admissible even under Section 27 of the Act as an
exception to Section 25 of the Act.
25. The learned Judge also observed that some part of the
demonstration made by the petitioners which relates to the
subsequent conduct of the petitioners is admissible in evidence
under Section 8 of the Act. No doubt, subsequent conduct of an
accused is relevant if it influences or is influenced by any fact in
issue or relevant fact. However, the learned Judge failed to
consider that the demonstration shown by the petitioners to the
police as to their conduct is admissible against them under Section 8 of the Act only to the extent of its non-confessional portion. Meaning thereby, any evidence showing the conduct of an accused must first overcome the bar created by Section 25 of the Act and only then it can be relied upon under Section 8 of the Act. (See: Bheru Singh Vs. State of Rajasthan 1994 (2) SCC 467 and Aghnoo Nagesia Vs. State of Bihar 1965 SCC OnLine SC 109. In the present case, the entire demonstration
panchanama is hit by Section 25 of the Act. Therefore,
demonstration made by the petitioners to show the manner in
which the offence was committed by them is not admissible under
Section 8 of the Act even to show subsequent conduct.
26. To conclude, the learned Additional Sessions Judge
has not considered these aspects and erroneously overruled the
objection of the petitioners. Therefore, the orders dated
08.10.2024 and 14.11.2024 passed by the learned Additional
Sessions Judge, Buldhana in Sessions Trial No.24 of 2022 are
hereby set aside. The objections of the petitioners are sustained.
Accordingly, the petition succeeds.
27. In view of the above, the petition is allowed. Rule is
made absolute.
JUDGE
Wagh
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