HIRALAL ANANDJI MARU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) [The following portion of the judgment is reported as per the directions of His Lordship]

(2.) Before parting with the evidence on recoveries made by the police in consequence of information given by the accused, we would like to make some observations on the omission of the learned Sessions Judge to carefully dissect from the rest, the portion of the accuseds statement which would attract section 27 of the Indian Evidence Act. The panchnama in question are Exhibits 90 and 80. Exhibit 90 relates to the statement made by the accused at about 4.00 p.m. on 22nd August, 1984, offering the police to take to the shops of the jewellers where he had pawned the silver anklets and the Mohanmal (articles 15 and 16). Exhibit 80 is the panchnama of the accuseds statement made by him on the same day at 8.15 p.m. offering to lead the police to the shop of the jeweller with whom he had pawned the gold chain Article 17. A perusal of these two panchnamas will show that the learned Judge has admitted grossly incriminating statements of the accused which are clearly beyond the ambit of section 27 of the Indian Evidence Act. For example in Exhibit 90, the learned Judge has admitted the statement of the accused to the effect that on 20th August, 1984, he met the deceased near Churchgate Railway Station around 9.30 a.m. and that after their taking breakfast at the railway canteen, he took the pair of anklets from her. So also, the learned Judge has admitted the accuseds statement to the effect that on the same day, after watching the show Anand aur Anand in the Topiwalla Theatre at Goregaon, he hired a taxi and that while the taxi was on its way, the deceased handed over the Mohanmal to him. Again, in the panchnama Exhibit 80, the aforesaid statement is substantially repeated with the addition that the deceased had handed over to him the gold chain also along with the Mohanmal. Now this part of the information throws light on the circumstances in which the accused arranged to secure possession of the ornaments from the deceased, before pawning them with jewellers concerned. In other words, the information relates to the past history of the ornaments and not to any fact discovered within the meaning of section 27 ibid. The correct meaning and significance of a fact discovered within the meaning of this section is that a particular physical object is lying in a particular setting to the knowledge of the accused. This section makes relevant and admissible only such portion of an accuseds statement, as relates distinctly to the fact thereby discovered. The rest of the information relating to the past history or user of the physical object has to be rejected as mere dross. The law on the subject has been defined authoritatively and in lucid terms by the Privy Council more than 40 years ago in A.I.R. 1947 P.C. 67 (Pulukuri Kotlayya v. Reg.) This leading case has since been approved by the Supreme Court in a string of decisions. We hope the learned Judge will be more cautious and discreet in future in dealing with section 27 of the Indian Evidence Act.

(3.) We are also not happy with the way the learned Judge has pressed in aid the police statement of one Mithibai in order to corroborate the testimony of Kalibai P.W. 19 on the ground that Mithibai had since died and could not, therefore, be examined by the prosecution as a witness at the trial. The expedient adopted by the learned Judge clearly contravenes the peremptory provisions of section 162 Cri.P.C. A bare perusal of this section is enough to enlighten the reader that a policy statement can be used at the trial of the offence investigated, for the limited purpose of contradicting a person who is actually examined as a prosecution witness. The general bar enacted in this section is subject to relaxation in only two situations, that is to say, where the statement attracts section 27 or 32(1) of the Indian Evidence Act. The learned Judge has relied on a decision of the Delhi High Court reported in 1987 Cri.L.J. 570 (Ram Jetmalani v. Director, C.B.I.) for using Mithibais police statement for corroboration. That case only lays down that a statement recorded by the police under section 161 Cri.P.C. is a public document within the meaning of section 74 of the Indian Evidence Act and that they are bound to furnish certified copy of such statement to a plaintiff who wants to use it in a civil action. Section 162 ibid does not create any bar against use of a police statement in a civil action or even at a criminal trial for an offence other than the one during the course of the investigation of which the statement was recorded under section 161 Cri.P.C. The learned Judge went wrong in relying on the Delhi ruling. We leave the point here. Appeal allowed.