Criminal RC.No.183 of 2017 08-02-2017 V.Naveen Goud, S/o V.Narsaiah, H.No.6-3-26/5/1, Premnagar, Khairatabad, Hyderabad.,....Petitioner The State of Telanagana,, rep, by Public Prosecutor, through P.S.Karimnagar-III Towen Po.llice SStation, Karimnagar,....Respondent

HONBLE DR.JUSTICE B.SIVA SANKARA RAO        

Criminal RC.No.183 of 2017

08-02-2017

V.Naveen Goud, S/o V.Narsaiah, H.No.6-3-26/5/1, Premnagar, Khairatabad,
Hyderabad.,....Petitioner

The State of Telanagana,, rep, by Public Prosecutor, through P.S.Karimnagar-III
Towen Po.llice SStation, Karimnagar,....Respondent

Counsel fore the petitioner: SDri M.Pavan Kumar Aditya

Counsel for the respondent: Addl.Public Prosecutor

<Gist:

>HEAD nOTE:  

?CITATIONSD:

1. AIR (34) 1947 Privy Council 67
2. 2006 (crl.L.J.1109
3.s(2015) 11 Supreme Court Cases 31
4. AIR 2001 sc sc 1158


HONBLE DR.JUSTICE B.SIVA SANKARA RAO        

Crl.R.C.No.183 of 2017

ORDER :

        The revision petitioner is the accused in Sessions Case No.130
of 2015 on the file of the District & Sessions Judge at Karimnagar for
the offences punishable under Sections 498-A, 302 and 201 I.P.C.,
which is outcome of Crime No.149 of 2014 of III Town Police
Station, Karimnagar.  After investigation, the Police filed charge-
sheet, which was taken cognisance by the learned committal
Magistrate and the case was committed to the Court of Sessions and
after framing of charges from the pre-charge hearing, trial
commenced.  It is in the course of trial, P.Ws.1 to 9 were examined,
on behalf of the prosecution, and Exs.P1 to 13 and Exs.M.O.1 were
marked.
2.      As per the charge-sheet, L.Ws.13 and 14 were cited as
mediators to the so called disclosure panchanama of the accused
leading to alleged discovery of facts within the meaning of Section 27
of the Indian Evidence Act.  The prosecution not chosen to examine
the said mediators and after the closure of the prosecution evidence,
the accused was examined under Section 313 Cr.P.C. and after
defence evidence, the matter is while coming for arguments, the
prosecution filed the application under Section 311 Cr.P.C. in
Crl.M.P.No.1515 of 2016 to recall P.W.9 - I.O. for exhibition of the
so called mediators panchanama.  Since the same was allowed on
09-01-2017 by the impugned order, the accused maintained the
revision.  The impugned order reads that as per the version of the
prosecution, due to inadvertence, mediators panchanama of the
disclosure of accused leading to discovery of facts was not exhibited
and sought to accept the recall of P.W.9 as it is essential.  The accused
contended saying that the so-called panchanama is hit by Section 25
of the Indian Evidence Act and is inadmissible.  The Court ultimately
held in the impugned order by referring to the respective contentions
that the relevancy of panchanama can be decided from the arguments
of both sides and at present marking the confession panchanama in the
evidence is essential in ordering for recall of P.W.9.
3.      The contentions in the grounds of revision vis--vis oral
submissions of the learned counsel for the accused revision petitioner
are that the Sessions Judge ought to have seen that there is no
admissible portion within the meaning of Section 27 of the Evidence
Act to mark and exhibit the so called confessional panchanama which
could have been accepted through mediators and their
non-examination is with no explanation and the impugned orders
saying no prejudice would be caused to the accused is no answer to
allow when the same is hit by Section 25 of the Evidence Act and
thereby sought for allowing the revision setting aside the impugned
order.
4.      The counsel drawn attention of this Court to the expression of
the Privy Council in the case of Kottaya Vs. Emperor  the relevant
portion of the judgment at para 10 speaks that the condition necessary
to bring Section 27 of the Evidence Act as an exception to Section 25
of the Act though not artistically worded to exhibit certain
supplements made by the accused in police custody to prove it is to be
shown of discovery of a fact in consequence of information received
from the person of any offence in the custody of a police officer
sought to depose by a witness of so much of information as relates
distinctly to the fact thereby discovered that may be proved as if a fact
is actually discovered in consequence of information of the accused in
custody, there must be some guarantee to afford to the information as
true and that can be safely allowed to be given in evidence to that
extent of the information admissible depending upon the exact nature
of fact to discover to which such information is required to relate; the
fact discovered cannot be equivalent to the object produced as fact
discovered embraces the place from which the object is produced
beyond knowledge of accused as to this, and the information given
must relate distinctly to this fact, like the fact that the knife is
concealed in the house of the informant to his exclusive knowledge of
the seizure from the disclosure to prove as very relevant.
5.      There is no dispute on the proposition.  In the other decision
placed reliance in Siddique Vs. State of Kerala  where particularly at
para 10 observations in Kottaya supra reproduced.
6.      Coming to the other decision in Indra Dalal Vs. State of
Haryana  wherein considering the scope of Sections 25 to 27 of the
Evidence Act from para 22 by reproduction of Section 27 held that
this Section is in the form of proviso to Sections 25 and 26 of the Act
which makes it clear that so much of such information which is
received from a person accused of any offence, in the custody of a
police officer, which has lead to discovery of any fact, may be used
against the accused.  Such information as given must relate distinctly
to the fact discovered.  By quoting the above principle on facts held
the information provided by the appellant-accused in the confession
statement not lead to any discovery thereby the contention is not
covered by Section 27, but hit by Section 25 of the Evidence Act.
7.      No doubt, from the above propositions what is the disclosure
made by accused while in police custody if leads to discovery of a fact
earlier not known but for from the disclosure which is within the
knowledge of the accused there is an assurance to the fact to relate as
true in carving out as an exception to any disclosure or confession
before police is otherwise inadmissible under Section 25 to make it
admissible as per Section 27 of the Evidence Act.  Even Section 162
Sub-Section (2) Cr.P.C. speaks that Section 162 has no application to
the Section 27 of the Evidence Act.  It is also the principle behind it
saying no one can make a disclosure which incriminates him, unless
there is truth, in which event, to consider from such a disclosure
whether is it a confession or not leads to a fact discovered to make use
of to that extent.  Thus, only so much of information whether amounts
to confession or not as relates distinctly to the fact discovered is
admissible and not a rest as per the settled expressions.  Thus, the fact
discovered not only it mean the object produced but also to embrace
the place from which it was produced and knowledge of the accused
about it.  Further, the use of word fact discovered is not confined to
object produced as it is not the object, but from it what is discovered
of the exclusive knowledge of accused and the disclosure of it and the
discovery of the fact leading from the disclosure.
8.      Once such is the case whether the impugned order any way
requires interference is the question.  No doubt in the order impugned
it speaks the recall of P.W.9 to exhibit the disclosure statement, it
does not mean to mark the entire statement and it does not mean
accused has no right to raise objection on admissibility and relevancy
of what is hit by Section 25 and what is saved by Section 27 for the
Court to hear and consider.  The other contention is that the mediators
could have been examined rather than recall of P.W.9 who was
already examined being I.O. to exhibit the disclosure statement.
9.      In fact, for a disclosure statement by accused while in police
custody to the extent leading to discovery of any fact within the
meaning of Section 27 of Evidence Act, no mediators panchanama is 
even required, as such, any mediators panchanama drafted of what is
disclosed in their presence and what is discovered pursuant thereto the
disclosure, there is no incumbent duty on the prosecution to examine
the so called mediators.  The Public Prosecutor is having absolute
discretion to examine which witness among the prosecution witnesses 
cited to prove the case and if he gets any doubt that any of the
witnesses not supporting the truth or exhibiting hostility to the truth,
there is no compulsion to examine even such witness and seek 
permission for cross-examination under Section 154 of the Evidence
Act invariably as it is one of the choices with prosecution to give up.
Thus, the non-examination of the mediators cannot be a ground to say
that P.W.9  I.O. cannot be recalled that too when it is the disclosure
made before him during investigation of the case as a Police Officer
and leading to discovery of fact from the disclosure to exhibit this
statement to the admissible portion under Section 27 of the Act by
shunning from exhibiting non-admissible portion hit by Section 25 of
the Act.  In fact, the accused are not helpless if at all they choose to
examine the mediators, to call as defence witnesses, apart from any
request to court by showing such necessity to call for as court witness
with right of cross-examination to both sides.
10.     Subject to these observations, while upholding the order of the
lower Court by giving liberty to accused to raise any objection on
admissibility and relevancy on the scope of Sections 27 and 25 of the
Evidence Act to mark subject to objection and to decide ultimately of
the admissible and relevant portion only to consider under Section 27
of the Evidence Act, which recourse is proper to adopt as laid down
by the Apex Court in Bipin Shantilal Panchal v. State of Gujarat .
11.     Accordingly, the Criminal Revision Case is disposed of.  No
order as to costs.
12.     Consequently, Miscellaneous Petitions pending, if any, shall
stand closed.

_________________________________    
DR.JUSTICE B.SIVA SANKARA RAO      
08th February, 2017

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