“Section 27” Of The Evidence Act And The Verdict In “Pulukuri Kottaya” Continue To Elude The Comprehension Of Many Judges At All Levels

A “confession” made to a “police officer”, by a person (presently or subsequently) accused of an offence cannot be proved against him and is, therefore, inadmissible in evidence before a Court of law in view of Section 25 of the Indian Evidence Act, 1872 (“Evidence Act” for short). Similarly, a confession by a person (presently or subsequently) accused of an offence and made while he is in the custody of a police officer, is also excluded from being proved against him by virtue of Section 26 of the Evidence Act. The distinction between Sections 25 and 26 is that while in the case of Section 25 what is inadmissible is a confession directly made to a “police officer”, in the case of Section 26 what is inadmissible is a confession made, while in the custody of a police officer, to a third person other than the police officer, unless it is made in the immediate presence of a Magistrate. But, an exception was sought to be carved out from the aforesaid sections since it was felt that if a fact was actually discovered in consequence of the information given by such an accused person, such fact should be made admissible in evidence, the reason being that it affords some guarantee to the truth of the information relating to the fact. That is how, Section 27 of the Evidence Act came to the enacted as a “proviso” to the preceding two Sections. Section 27 of the Evidence Act reads as follows:-

“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 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.”

2. This section is founded on the “doctrine of confirmation by subsequent events” (Vide –

• Para 13 of Bodh Raj v. State of Jammu and Kashmir AIR 2002 SC 3164 – Ruma Pal, Arijit Pasayat – JJ;
• Para 5 of State of Karnataka v. David Rozario (2002) 7 SCC 728 – U. C. Banerjee, Arijit Pasayat - JJ;
• Para 35 of State of Maharashtra v. Damu (2000) 6 SCC 269 – K. T. Thomas, D. P. Mohapatra - JJ;
• Para 26 of Pawan Kumar v. State of U.P. (2015) 7 SCC 148 = AIR 2015 SC 2050 - S. J. Mukhopadyaya, N. V. Ramana - JJ;
• Para 13 of Raja v. State of Haryana (2015) 11 SCC 43 – Dipak Misra, N. V. Ramana - JJ).

3. Let us now try to understand the sweep and amplitude of Section 27 of the Evidence Act by means of two illustrations.

Illustration A

The accused, while in the custody of a police officer says –

“I have hidden the dagger beneath the tiles of the cowshed of my neighbour Antony. I can show you the dagger which is so hidden.”

Thereafter, the police officer, on the strength of the above information given by the accused goes to the cowshed of Antony, the neighbour of the accused and takes out the dagger hidden beneath the tiles of the cowshed.

Illustration B

The accused, while in the custody of a police officer says –

“I have hidden the dagger in a secret place. If I am taken there, I shall show you the place and the dagger hidden there.”

Thereafter, the accused leads the police party to the cowshed of his neighbour Antony and takes out the dagger hidden beneath the tiles of the cowshed.

4. The distinction between Illustration A and Illustration B is this:

In Illustration A the accused person, in his disclosure statement given while in the custody of the police officer, has revealed the place of concealment of the weapon. The police officer who was in the dark about the place of concealment of the weapon until the accused revealed the same was able to find out the weapon from the information supplied by the accused and the officer could himself recover the weapon without any further help, co-operation or assistance by the accused. In other words, in Illustration A , the “information” given by the accused while in the custody of the police officer, revealed a “fact discovered” within the meaning of Section 27.

In Illustration B , the accused in his statement given while in the custody of the police officer, has not revealed the place of concealment of the weapon. Until the accused led the police party to the place of concealment of the weapon and took out the weapon, that place continued to be a secret for the police officer. In other words, in Illustration B , the accused did not, while he was in the custody of the police officer, give any information regarding the “fact discovered” within the meaning of Section 27.

5. Now let us understand the principle and scope of Section 27 of the Evidence Act as elucidated in the celebrated verdict of the Privy Council in Pulukuri Kottaya v. King Emperor AIR 1947 PC 67. The Board was comprised of Lord Wright, Lord Simonds, Lord Uthwatt and Sir John Beaumont with Sir John Beaumont rendering the verdict.

The relevant facts in Pulukuri Kottaya

• The case before the Privy Council was a case arising from the appellate verdict of the Madras High Court in a murder case involving rioting between two rival factions. There were altogether 18 persons arrayed as the accused in that case. The prosecution witnesses belonged to the faction which was inimical to the faction of the accused persons. Since the prosecution witnesses were hostile to the accused persons, the jury was not prepared to accept the prosecution evidence. However, the Sessions Judge, after taking special note of the rivalry between the two factions, scrutinized the evidence more carefully and accepted the testimony of the prosecution witnesses. The evidence consisted of the recovery of a “stick” based on the statement by A6 who had confessed that the accused had beaten Sivayya and Subayya to death and the “stick” which was used by him for beating and the “spear” given to him by his companion Dondapati Ramayya had been hidden by him in the rick of one Venkatanarasu. There was another confession by A3 who stated that he had stabbed deceased Sivayya with a “spear” which was hidden by him in a yard in his village. This confession resulted in the recovery of the spear. The Sessions Judge who tried the accused for the offences of rioting and murder besides other offences, passed a verdict of guilty against accused Nos: 1 to 9. A1 to A4, A7 and A8 were sentenced to death and the others were sentenced to imprisonment for life. The above verdict of the trial Court was confirmed in appeal by the High Court of Madras. The trial Judge as well as the High Court held as admissible both the confessional statements given by A3 and A6 in their entirety including the inculpatory portions as well. An earlier verdict by a Full Bench of the Madras High Court in Athappa Gaundan v. Emperor AIR 1937 Madras 618 which had held that the expression “fact discovered” in Section 27 of the Evidence Act would include the weapon or object recovered and also the user of the same by the accused while committing the offence, was followed by the High Court of Madras to hold that the confessional statements (including the inculpatory portions) of A3 and A6 were admissible under Section 27 of the Evidence Act. It was aggrieved by the said verdicts that A1 to A9 took up the matter in further appeal to the Privy Council.

The issue in Pulukuri Kottaya

• The second ground upon which leave to appeal to His Majesty in Council was granted was –

The alleged wrongful admission and use in evidence of confessions alleged to have been made whilst in police custody by appellants 3 and 6. This point involves an important question as to the construction of Section 27 of the Evidence Act, upon which the opinions of High Courts in India are in conflict.

Since the first ground considered by the Privy Council is not relevant for the present discussion, the same is not dealt with in this article.

Conditions necessary for the operation of Section 27

• The aforesaid second ground was considered at length by the Privy Council. In paragraph 10 of the verdict (AIR 1947 PC 67) Sir John Beaumont observed as follows:-

“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.”

(Emphasis supplied by me)

What is “fact discovered” in Section 27 ?

• Repelling the contention raised on behalf of the Crown that the expression “fact discovered” means the physical objects produced, the Privy Council in the very same paragraph observed as follows:-

“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.”

(Emphasis supplied by me)

Meaning of the words “whether it amounts to a confession or not”

• With regard to the words “whether it amounts to a confession or not” occurring in Section 27 of the Evidence Act the Privy Council explained the same in paragraph 11 as follows:-

“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.”

(Emphasis supplied by me)

The conclusion reached in Pulukuri Kottaya

• It was finally concluded by the that the inadmissible portions in the two confessions were also wrongly admitted in evidence by the Courts below. The case was, therefore, remanded to the High Court to consider whether the inadmissible portions of the statements, if excluded from consideration, there was other admissible evidence within the meaning of Section 167 of the Evidence Act to justify the convictions. If not, the High Court was given the freedom either to discharge the accused or to order a de novo trial in their discretion.

CONDITIONS NECESSARY FOR THE APPLICABILITY OF SECTION 27

6. From the legal position as elucidated in Pulukuri Kottaya and the subsequent rulings of the Supreme Court of India, the ingredients of Section 27 of the Evidence Act to be satisfied before applying the Section are—

1. There should be an “information” from a person “accused of an offence” given by him while in the “custody of a Police Officer”. (Here it is not necessary that at the time of giving the above “information” he is formally made an accused. It is enough that he is subsequently made an accused.)
2. That “information” should be regarding a “fact discovered” (which is not the “weapon or object” discovered but the “place” where the “weapon or object” is concealed and the “knowledge” of the accused regarding that “place”.) (The word “fact” should answer the definition of “fact” in Section 3 of the Evidence Act as to mean the “state of things” or “relation of things” capable of being perceived by the senses and “any mental condition of which any person is conscious.”

If the “information” given by the accused while in custody does not reveal the “place” of concealment of the “weapon or object”, then there is no “fact discovered” so as to bring the “information” within the purview of Section 27 of the Evidence Act.)

1. Such “fact discovered” must have been deposed to i.e. testified before Court. (This act of deposing before Court takes place during the trial of the case when the “weapon or object” can be described as the “weapon or object produced”. In other words the “production” or “recovery” of the “weapon or object” pursuant to the “information” by the accused, is a must to make the fact “discovered” admissible in evidence. In other words, if pursuant to the “information” furnished by the accused person there is no “weapon” or “object” produced or recovered, then there is no “fact thereby discovered” within the meaning of Section 27, to be proved before Court. to put it differently, it is only if the “weapon or object” is recovered from the place of concealment disclosed by the accused in his “information”, can it be said that there is confirmation by subsequent event.)
2. When once pursuant to the “information” about the “fact discovered”, a recovery of the “weapon or object” has been effected, then what is admissible before Court is only so much of the said information which relates distinctly to the “fact discovered” and not any confession by the accused regarding the prior user by him of the “weapon or object” at the time of committing the offence, unless his act of “possession” or “concealment” of the “weapon or object” by itself amounts to an offence.

My answer to Illustrations A and B

The classic interpretation of Sec 27 of the Evidence Act by Sir John Beaumont speaking for the Privy Council in the celebrated Pulukuri Kottaya V. Emperor AIR 1947 P.C 67 is to the effect that -

"Fact discovered " is not the object produced but it embraces the "place" from where the object is produced and the “knowledge” of the accused regarding the said place. "

Section 27 says that the "fact discovered " should be there in the "information" received from an accused person while in the custody of the police officer. It is this "information" (already given by the accused to the police officer while in custody) which gets confirmed by the subsequent recovery. It is not a requirement of law that the accused should himself lead the police party to the place of concealment of the “weapon or object” and take it out of the hidden place. (Vide para 24 of Raveendran v. State 1989 (2) KLJ 534 (Kerala – DB) – S. Padmanabhan, P. K. Shamsuddin – JJ; Para 142 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 (Parliament attack case) - P. Venkatarama Reddy, P. P. Naolekar – JJ. Hence, Illustration A clearly falls under Section 27 of the Evidence Act.

But, in Illustration B , the "information" given by the accused does not reveal the "place" where the incriminating object is concealed by him. Hence, there is no "information" given about the "fact discovered". On the contrary, the accused is reserving to himself the "fact discovered" till he leads the police party to the "place" of concealment of the weapon and then takes out the weapon from its hiding place.

Hence, Illustration B does not fall under Section 27 of the Evidence Act. At best, the action of the accused in Illustration B may amount to a "conduct" provable under Section 8 of the Evidence Act.

A few recent Apex Court verdicts doing violence to Section 27

7. On 13-10- 2022 two separate verdicts by the Supreme Courts of India were passed, one by a three-Judge Bench in Ramanand @ Nandlal Bharti v. State of U. P. 2022 SCC OnLine SC 1396 = 2022 KHC 7083 – Uday U. Lalit – CJI, S. Raveendra Bhat and J. B. Pardiwala - JJ and the other, by a two-Judge Bench in Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400 = 2022 KHC 7088 – Uday U. Lalit – CJI, J. B. Pardiwala – JJ, to the effect that while recording the confessional statement of an accused person falling under Section 27 of the Evidence Act, a Panchanama should be prepared initially at the Police Station and two independent witnesses also should be called to the Police Station to witness the confessional statement by the accused and thereafter to witness the accused proceeding to the place of concealment of the “weapon or object” and taking out the same and this also should be incorporated in the Panchanama. Towing the line of the second verdict above, another two-Judge Bench of the Supreme Court in Boby v. State of Kerala 2023 LiveLaw (SC) 50 – B. R. Gavai, M. M. Sundresh – JJ, has acquitted the appellant therein (A3) for the reason that no Panchanama was prepared while recording the confessional statement of the appellant/accused. A perusal of paragraph 2.3 of that verdict shows that Exhibit P23 was the disclosure statement of the appellant in that case. In spite of that, the Apex Court held that the confessional statement could not be looked into for want of a Panchanama.

(In my article on Ramanand @ Nandlal Bharti (Supra - 2022 SCC OnLine SC 1396 = 2022 KHC 7083) I have taken pains to show that the view taken in that case is contrary to the settled positions and the same may set a bad precedent. The apprehended danger has already taken place at the Supreme Court itself in Boby v. State of Kerala 2023 LiveLaw (SC) 50 – B. R. Gavai, M. M. Sundresh – JJ.)

8. I had occasion to emphasise on several occasions about the mode of proof of a statement falling under Section 27 of the Evidence Act. Police Officers cannot be expected to possess any photographic memory to remember the various steps of investigation conducted by them in each and every case. That is the reason why they prepare contemporaneous records incorporating the various measures taken by them during the course of investigation. A Panchanama or a Mahazar is one such record. Similarly, calling one or two independent persons to witness the giving of the disclosure statement by the accused and to witness the recovery of the incriminating articles by or at the instance of the accused, is to gain credibility to the actions taken by the investigating officer. In the ancient Justice system administered at the village level in India, a group of 5 elected and learned members of the village would preside over and decide a dispute amongst the villagers. The said group of 5 was called “panch” and their proceedings recorded on paper was often called “Panchanama”. Still earlier, such a contemporaneous record was called “mediatornama”. Whether it is attributable to the law-reporters of those times or whether it is on account of the incorrect apprising of the English Judges about the then prevailing phraseology namely, “mediatornama”, the expression that we find used in paragraph 13 of Pulukuri Kottaya is “mediatomama” which was not a phrase that was in vogue during those days. Panchanama has relevance only under Section 100 (4) Cr.P.C. when “search” of a “closed place” is carried out. The Supreme Court has clarified that Section 100 (4) Cr.P.C. has no application to a recovery falling under Section 27 of the Evidence Act. (Vide para 19 of State (NCT of Delhi) v. Sunil (2001) 1 SCC 652 = 2001 Cri.L.J. 504 – K. T. Thomas, R. P. Sethi – JJ.) The law does not require any Panchanama to be prepared or any independent witness to be called in connection with a recovery falling under Section 27 of the Evidence Act. What the investigating officer is expected to do is to make prompt entries in the “case diary” about the various steps of investigation taken. It may be after months or years later that the Police Officer will be giving evidence before Court. At that time, he is entitled to refresh his memory by perusing the “case diary”. This is permissible under 159 of the Evidence Act. The interdict under Section 162 (1) Cr.P.C. against the user of case diary statements, is lifted by sub-section (2) of Section 162 Cr.P.C. in the case of a statement falling under Section 27 of the Evidence Act. This right available to the investigating officer under Section 159 of the Evidence Act, has been highlighted in para 22 of State of Karnataka v. Yarappa Reddy AIR 2000 SC 185 - K. T. Thomas, A. P. Misra – JJ; Paras 22 and 23 of Standard Chartered Bank v. Andhra Bank Financial Services Ltd. AIR 2015 SC 3530 – V. Gopala Gowda, R. Bhanumathi – JJ.

Damage done by wrong verdicts

9. A wrong verdict, when published, travels faster than other predictable verdicts, by spreading like a wildfire particularly, if it is in favour of the accused person. This is because, intelligent practitioners of law know that such a wrong verdict is short-lived. Hence, before it is overruled, hurried attempts to take maximum advantage of the same, will be afoot. Just as with every Judgment, a Judge gets one "sure enemy" and a "doubtful friend", with every article on "wrong verdicts", a reviewer like me gets more foes on the Bench than friends. When the Judges of the highest court in the country, endowed with all the advanced digital facilities in addition to erudite law clerks, hand down patently wrong verdicts setting bad judicial precedents, I, for one, cannot resist the temptation of exposing the unpardonable mistakes. My endeavour, through such articles, however, is not meant to underestimate or undermine any of the Judges involved but only to ensure that the streams of Justice continue to flow pure and clean. There is, of course, a subjective element in this exercise. My view regarding a particular legal proposition laid down in a verdict, need not necessarily be the last word on the topic but can naturally be my perspective on the verdict. This is just to mention that me too is not infallible.

Author is a Former Judge of Kerala High Court

Views are personal,