DEOMAN UPADHYAYA Vs. STATE

JUDGEMENT

(1.) I respectfully dissent from the view taken by my learned brothers that Section 27, Evidence Act, and Section 162(2), Cr. P. C. are void on account of denying equality before the law guaranteed by the Article 14 of the Constitution.

(2.) Admission is defined in Section 17 of the Evidence Act to mean a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21. A confession is a specie of an admission of an accused; it is an acknowledgment in express words of the truth of the guilty fact charged; Wigmore on Evidence, Volume III, third edition, paragraph 821. In other words it is admission of all the facts in issue and Consists expressly or impliedly of as many admissions as there are facts in issue. In Pakala Naravana Swami v. King Emperor. 66 Ind App 66: (AIR 1939 PC 47) Lord Atkin observed at page 81 (of Ind App): fat p. 52 of AIR)

(3.) Evidence can be given only about the existence or non-existence of a fact in issue and of a relevant fact and of no other matter, vide Section 5 of the Evidence Act. Section 27 does not make the evidence of discovery of a fact admissible; if it is admissible it must be under Section 5. What it makes admissible is the evidence of a statement of the accused leading to the discovery of the fact. Though Section 27 is worded as if it was only an exception to the preceding sections i.e. Sections 25 and 26 and probably 24 also), it really is more than that and contains something not within the scope of the preceding sections. It deals with part of "information" which is a wider term than "confession", which is all that is dealt with in the preceding sections. Ignoring irrelevant matter, information must consist of a confession or an admission of a fact in issue or a relevant fact. The part of it that is confirmed by subsequent facts and is made receivable in evidence by Section 27 must be a confession or an admission of a fact in issue or a relevant fact. If the whole confession is confirmed by subsequent facts, the whole is receivable in evidence under Section 27 notwithstanding the bans imposed by the preceding sections. If the information is a confession and the part of it that is confirmed by subsequent facts is an admission of a fact in issue, it may be barred from evidence by the preceding sections but is made receivable in evidence by Section 27. If the information is a confession and the part of it confirmed by subsequent facts is an admission of a relevant fact, its admissibility is governed by Section 21 and not by Section 24 to 26 and would be receivable in evidence even in the absence of Section 27. If the inforrnation is an admission of a fact or facts in issue, the part of it that is confirmed by subsequent facts must be an admission of a fact in issue or of a relevant fact; in either case its admissibility is governed by Section 21 and not by Sections 24, 25 and 26 and it would be receivable in evidence even if Section 27 did not exist. If the information is an admission of a relevant fact, or relevant facts the part of it confirmed by subsequent fact can only be an admission of a relevant fact, the admissibility of which is governed by Section 21 and not by Sections 24, 25 and 26 and which would be receivable in evidence even if Section 27 did not exist. Some of these statements need explanation. Irrelevant matter contained in an information is inadmissible even though confirmed by subsequent facts. No evidence that is irrelevant and, therefore cannot be received in evidence, vide Section 5, is made admissible by Section 27. If an irrelevant matter contained in an information is confirmed by subsequent facts, the evidence about the subsequent facts itself would be irrele- vant and if it cannot be received in evidence no question will arise of receiving in evidence the part of the information. Sections 24, 25 and 26 bar a confession, that is an admission of all the facts in issue, but not an admission of only some fact or facts in issue or of a relevant fact. A confession cannot be split up into two or more admissions of facts in issue and one of them cannot be received in evidence as an admission if the whole confession is barred. When some authorities lay down that an admission is receivable in evidence though the confession is, pr would be. barred, it is either an admission of a relevant fact and, therefore, not forming part of the confession or an admission of some fact or facts in issue standing alone. If an accused admits only some fact or facts in issue and not all the facts in issue, his statement is an admission and not a confession and its admissibility is not governed by the provisions deling with confessions. If a statement of an accused contains not only a confession but also an admission, which can only be of a relevant fact, the latter would be receivable in evidence under Section 21 even though the confession is barred by Section 24 etc., the reason being that an admission of a relevant fact receivable in evidence under Section 21 is not made non-reeeivable merely because it accompanies a confession hit by Sections 24 etc.