Pulukuri Kottaya v. Emperor AIR 1947 PC 67 : 1947 IC 135

Case Summary

Full Case Details

SIR JOHN BEAUMONT – This is an appeal by special leave against the judgment and

order of the High Court of Judicature at Madras, dated October 22, 1945, dismissing an

appeal against the judgment and order of the Court of Sessions, Guntur Division, dated

August 2, 1945 whereby the appellants, who were accused Nos. 1 to 9 and nine others, were

found guilty on charges of rioting and murder. Appellants Nos. 1, 2, 3, 4, 7 and 8 were

sentenced to death, and appellants Nos. 3 to 9 were sentenced to transportation for life. There

were other lesser concurrent sentences which need not be noticed. At the conclusion of the

arguments their Lordships announced the advice which they would humbly tender to His

Majesty and they now give their reasons for that advice.

2. The offence charged was of a type common in many parts of India in which there are

factions in a village, and the members of one faction are assaulted by members of the other

faction and, in the prosecution which results, the Crown witnesses belong to the party hostile

to the accused; which involves that their evidence requires very careful scrutiny. In the

present case, the assessors were not prepared to accept the prosecution evidence, but the

learned Sessions Judge, whilst taking careful note of the fact that the six eye-witnesses were

all hostile to the accused, nevertheless considered that the story which they told was

substantially true, and accordingly he convicted the accused. As already noted, this decision

was upheld by the High Court in appeal.

3. The grounds upon which leave to appeal to His Majesty in Council, was

granted were two:-

1. The failure of the prosecution to supply the defence at the proper time with

copies of statements which had been made by important prosecution witnesses during

the course of the preliminary Police investigation involving, it is alleged, a breach of

the express provisions of S. 162 of the Criminal P.C.

2. The alleged wrongful admission and use in evidence of confessions alleged

to have been made whilst in Police custody by appellants Nos. 3 and 6. This point

involves an important question as to the construction of S.27 of the Indian Ev. Act

upon which the opinions of High Courts in India are in conflict.

5. The facts material upon this part of the case are these. The offence took place at about

6.30 p.m. on December 29, 1944 and at 7.00 a.m. on December 30, the Police Sub-Inspector

held an inquest on the body of one of the murdered men. He examined five of the

prosecution witnesses, including four of the alleged six eye-witnesses and wrote down their

statements in his note book. After the conclusion of the Inquest, the Circle Inspector took over

the investigation from the Police Sub-Inspector and on the same day, that is, December 30, he

examined all the alleged eye-witnesses and others, including all the witnesses who had been

examined by the Police Sub-Inspector, and their statements were recorded in the Case Diary

prepared by the Circle Inspector. It is the failure to produce the note-book of the Police SubInspector which constitutes the alleged infringement of the proviso to S. 162, and the facts as

to this are stated in an affidavit of Gutlapally Venkata Appayya sworn on October 19, 1945

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and are not challenged. Prior to the commencement of the preliminary inquiry before the

Magistrate, an application was made on behalf of the accused for grant of copies of statements

under S. 162 of the Criminal P.C. recorded by the Sub-Inspector and the Circle Inspector of

Police from the prosecution witnesses in the case during investigation. The accused were

supplied with copies of statements made by witnesses before the Circle Inspector of Police

and were informed that statements made to the Sub-Inspector of Police were not available.

During the Sessions trial, when prosecution witness No.2 who was the principal prosecution

witness, was in the witness-box, Counsel for the accused represented to the Court that he had

not been supplied with copies of statements recorded by the Sub-Inspector at the first inquest

and requested the Court to make those statements available to enable him to cross-examine

the important prosecution witnesses with reference to the earliest statements. The learned

Sessions Judge directed the Public Prosecutor to comply with the request. The Public

Prosecutor, after consulting the Sub-Inspector and Circle Inspector, who were present in

Court, submitted to the Court that except what was recorded in the inquest report itself, no

other statements were recorded by the sub-Inspector, and the learned Judge directed the

defence Counsel to proceed. The next day, when the cross-examination of prosecution witness

No.2 was continued, Counsel for the accused submitted to the Court that he desired to file an

application for copies of statements recorded by the Sub-Inspector at the first inquest so that it

might be endorsed by the prosecution that no such record of statements existed. Then the

Public Prosecutor stated to the Court that he fully realized his responsibility in making the

statements he had made on the previous day, but there was no record of any statement made at

the inquest available. On the fourth day of the trial, after the principal prosecution witnesses

had been discharged, the Police Sub-Inspector gave evidence, and he then produced in the

witness-box his note-book containing the statements of the five witnesses he had examined at

the inquest, and a copy of such statements was then supplied to the accused. There are some

discrepancies between the statements made to the Police Sub-Inspector and the statements of

the witnesses in the witness-box, but it is not suggested that such discrepancies are of a vital

nature.

6. It is clear from the facts narrated above that there was a breach of the proviso to S. 162

of the Criminal P.C., and that the entries in the Police Sub-Inspector’s note-book were not

made available to the accused, as they should have been, for the cross-examination of the

witnesses for the Crown. The right given to an accused person by this section is a very

valuable one and often provides important material for cross-examination of the prosecution

witnesses. However slender the material for cross-examination may seem to be, it is difficult

to gauge its possible effect. Minor inconsistencies in his several statements may not

embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead

to the ultimate breakdown of the whole of his evidence, and in the present case it has to be

remembered that the accused’s contention was that the prosecution witnesses were false

witnesses. Courts in India have always regarded any breach of the proviso to S.162 as matter

of gravity. Baliram v. King-Emperor [AIR 1945 Nag] where the record of statements made

by witnesses had been destroyed, and Emperor v. Bansidhar [AIR 1931 All 262] where the

Court had refused to supply the accused copies of statements made by witnesses to the Police,

afford instances in which failure to comply with the provisions of S.162 have led to the

conviction being quashed. Their Lordships would, however, observe that where, as in those

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two cases, the statements were never made available to the accused, an inference which is

almost irresistible, arises of prejudice to the accused. In the present case, the statements of the

witnesses were made available though too late to be effective, and their contents are known.

This by itself might not be decisive, but, as already noted, the Circle Inspector re-examined

the witnesses whom the Police Sub-Inspector had examined, and did so on the same day. The

notes of the examination by the Circle Inspector were made available to the accused at the

earliest opportunity, and when the note-book of the Police Sub-Inspector was produced

towards the end of the prosecution case, Counsel for the accused was in a position to ascertain

whether there was any inconsistency between the statements made to the Police Sub-Inspector

and those made later in the day to the Circle Inspector. If any such inconsistency had been

discovered, this would have been a strong point for the accused in their appeal, but no such

point was taken; indeed, the only complaint upon this subject in the High Court was that the

Police Sub-Inspector ought to be presumed to have prepared a Case Diary which he was

suppressing. The High Court rejected this contention, rightly as their Lordships think. Nor has

any such point been taken before this Board, and the entries from the Circle Inspector’s diary

are not on record. In the result, their Lordships are satisfied that, in the peculiar circumstances

of this case, no prejudice was occasioned to the accused by the failure to produce in proper

time the note-book of the Police Sub-Inspector.

7. Even on this basis, Mr. Pritt for the accused has argued that a breach of a direct and

important provision of the Criminal P.C. cannot be cured, but must lead to the quashing of the

conviction. The Crown, on the other hand, contends that the failure to produce the note-book

in question amounted merely to an irregularity in the proceedings which can be cured under

the provisions of S. 537 of the Criminal P.C. if the Court is satisfied that such irregularity has

not, in fact, occasioned any failure of justice. There are, no doubt, authorities in India which

lend some support to Mr. Pritt’s contention, and reference may be made to Tirkha v. Nanak

[28 Cr. LJ 291)] in which the Court expressed the view that S. 537 of the Criminal P.C.

applied only to errors of procedure arising out of mere inadvertence, and not to cases of

disregard of or disobedience to, mandatory provisions of the Code, and to Madura Muthu

Vannian In re [AIR 1922 Mad. 512] in which the view was expressed that any failure to

examine the accused under S. 342 of the Criminal P.C. was fatal to the validity of the trial and

could not be cured under S. 537. In their Lordships’ opinion, this argument is based on too

narrow a view of the operation of s. 537. When a trial is conducted in a manner different from

that prescribed by the Code the trial is bad, and no question of curing an irregularity arises;

but if the trial is conducted substantially in the manner prescribed by the Code, but some

irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537,

and nonetheless so because the irregularity involves, as much nearly always be the case, a

breach of one or more of the very comprehensive provisions of the Code. The distinction

drawn in many of the cases in India between an illegality and an irregularity is one of degree

rather than of kind. This view finds support in the decision of their Lordships’ Board in Abdul

Rahman v. King Emperor [AIR 1927 PC 44] where failure to comply with S. 360 of the

Criminal P.C. was held to be cured by ss. 533 and 537. The present case falls under S. 537

and their Lordships hold the trial valid notwithstanding the breach of S.162.

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8. The second question, which involves the construction of S.27 of the Indian Evidence

Act, will now be considered. That section and the two preceding sections, with which it must

be read, are in these terms:-

“25. No confession made to a Police Officer, shall be proved as against a person

accused of any offence.

26. No confession made by any person whilst he is in the custody of a Police

Officer, unless it be made in the immediate presence of a Magistrate, shall be proved

as against such person.

27. 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.”

10. 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. Mr. Megaw, for the Crown, has argued that in such a case the “fact

discovered” is the physical object produced, and that any information which relates distinctly

to that object can be proved. Upon this view information given by a person that the body

produced is that of a person murdered by him that the weapon produced is the one used by

him in the commission of a murder, or that the ornaments produced were stolen in a dacoity

would all be admissible. If this be the effect of S. 27, little substance would remain in the ban

imposed by the two preceding sections on confessions made to the Police, or by persons in

Police custody. That ban was presumably inspired by the fear of the Legislature that a person

under Police influence might be induced to confess by the exercise of undue pressure. But if

all that is required to lift the ban be the inclusion in the confession of information relating to

an object subsequently produced, it seems reasonable to suppose that the persuasive powers of

the Police will prove equal to the occasion, and that in practice the ban will lose its effect. On

normal principles of construction their Lordships think that the proviso to S.26, added by

S.27, should not be held to nullify the substance of the section. 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

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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.

11. High Courts in India have generally taken the view as to the meaning of S.27 which

appeals to their Lordships, and reference may be made particularly to Sukhan v. Crown [AIR

1929 Lah 344] and Ganu Chandra Kashid v. Emperor [AIR 1932 Bom 286] on which the

appellants rely, and with which their Lordships are in agreement. A contrary view has,

however, been taken by the Madras High Court, and the question was discussed at length in a

Full Bench decision of that Court in Athappa Goundan, In re [AIR 1937 Mad. 618] where

the cases were referred to. The Court, whilst admitting that the weight of Indian authority was

against them, nevertheless took the view that any information which served to connect the

object discovered with the offence charged was admissible under S.27. In that case, the Court

had to deal with a confession of murder made by a person in Police custody, and the Court

admitted the confession because in the last sentence (readily separable from the rest) there

was an offer to produce two bottles, a rope, and a cloth gag, which, according to the

confession, had been used in, or were connected with the commission of the murder, and the

objects were in fact produced. The Court was impressed with the consideration that as the

objects produced were not in themselves of an incriminating nature, their production would be

irrelevant unless they were shown to be connected with the murder, and there was no

evidence so to connect them apart from the confession. Their Lordships are unable to accept

this reasoning. The difficulty, however great, of proving that a fact discovered on information

supplied by the accused is a relevant fact can afford no justification for reading into S. 27

something which is not there, and admitting in evidence a confession barred by S.26. 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. It is only one link in the chain of proof and the

other links must be forged in manner allowed by law.

12. In their Lordships’ opinion Athapa Goundan case [AIR 1937 Mad. 618] was

wrongly decided, and it no doubt influenced the decision now under appeal.

13. The statements to which exception is taken in this case are first a statement by

accused No.6 which he made to the Police Sub-Inspector and which was reduced into writing,

and is Ex. “P”. It is in these terms:-

“The mediatornama written at 9.00 a.m. on January 12, 1945, in front of

Maddineni Verrayya’s choultry and in the presence of the undersigned mediators”.

Statement made by the accused, Inala Sydayya on being arrested.

“About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya

and others at about sunset time at the corner of Pulipad tank. We all beat Boddupati

China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and

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Narayana ran away. Dondapati Ramayya who was in our party received blows on his

hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the

rick of Venkatanarasu in the village, I will show if you come. We did all this at

instigation of Pulukuri Kotayya”.

(Signed) POTLA CHINA MATTAYYA (Signed) KOTTA KRISHNAYYA

(Sgd.) G. BAPAIAH

January 12, 1945 Sub-Inspector of Police

14. The whole of that statement except the passage “I hid it (a spear) and my stick in the

rick of Venkatanarasu in the village. I will show if you come” is inadmissible. In the evidence

of the witness Potla China Mattayya proving the document the statement that accused No.6

said “I Mattayya and others went to the corner of the tank-land. We killed Sivayya and

Subayya” must be omitted.

15. A confession of accused No.3 was deposed to by the Police Sub-Inspector, who said

that accused No.3 said to him:-

“I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will

show you the place.”

The first sentence must be omitted. This was followed by a Mediatornama, Ex. Q.1,

which is unobjectionable except for a sentence in the middle, “He said that it was with that

spear that he had stabbed Boddapati Sivayya,” which must be omitted.

16. The position therefore, is that in this case evidence has been admitted which ought not

to have been admitted, and the duty of the Court in such circumstances is stated in S. 167 of

the Indian Evidence Act. It was therefore, the duty of the High Court in appeal to apply its

mind to the question whether, after discarding the evidence improperly admitted, there was

left sufficient to justify the convictions. The Judges of the High Court did not apply their

minds to this question because they considered that the evidence was properly admitted, and

their Lordships propose therefore, to remit the case to the High Court of Madras, with

directions to consider this question. If the Court is satisfied that there is sufficient admissible

evidence to justify the convictions, they will uphold them. If, on the other hand, they consider

that the admissible evidence is not sufficient to justify the convictions, they will take such

course, whether by discharging the accused or by ordering a new trial, as may be open to

them.

17. Their Lordships have, therefore, humbly advised His Majesty that this appeal be

allowed and that the case be remitted to the High Court of Madras, with directions to consider

whether the evidence on record apart from the confessional statements of accused No.3 and

accused No.6 which their Lordships have held to be inadmissible, is sufficient to justify the

convictions and to make such order in the matter as may be right having regard to their

decision upon the question remitted to them.