R.S. Sarkaria, J.
1. This appeal by special leave is directed against a judgment of the High Court of Bombay upholding the conviction and sentence passed against the appellant under Section 379, Penal Code. The facts are these:
The appellant was tried in the court of the Presidency Magistrate 5th Court, Dadar on the charge of committing theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/-, from the premises of the Bombay Port Trust on 1-8-1968 at 8.40 A. M.
2. The First Information Report of the theft lodged with the police by Murari Bhikaji Bidya (PW 1) Shed Superintendent of Haji Bunder, at 9.15, was as follows:
Today in the morning at about 8 a. m., I reported for duty at Haji Bunder. At about 8.40 A. M. or so, the Canteen boy named Shri Babu Durga came to me and informed me that one M/Car had come inside Haji Bunder and removed 3 small drums which were lying between 'A' Shed and Canteen in an open place along with several drums. I immediately asked Shri Joshi the gate-keeper who was present in my office at that particular time, to go out and see what was the matter. After some time Shri Joshi came to my office and informed me that before he could reach the gate, the car had already left however, he has noted down the number of the Car as 6649. He further told me that he shouted to stop the car but the driver of the said car drove away the car at a fast speed. I then went in the open place in between 'A' Shed and Canteen where the drums were lying when the above said Canteen boy showed me a gap in between bigger-size drums from where the small drums were removed ....
3. Sub-Inspector Thorat PW7, conducted the investigation. After making inquiries from the Regional Transport Office, he traced the owner of the car, BML 6649, and requested him to send his car-driver to the Police station. Accordingly, the driver, Babu Vithal (PW 5), accompanied by the accused (appellant) appeared before the Sub-Inspector in the Police Station on September 26, 1968. The Sub-Inspector took the accused into custody. He then called the Panchas (including PW 6) and, in their presence, interrogated the accused who made a statement which was recorded by the Sub-Inspector. Rendered into English, this statement (incorporated in the Panchnama Ex. C) reads:
I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August.
4. The accused then led the Police Officer and the Panchas to a Musafirkhana in Crawford Market and pointed out the three drums lying there, bearing the markings, 'ACC I Phosphorous Pentaoxide'. Thereafter, the drums were identified by PW 1 as the same which had been stolen.
5. Among others, the prosecution examined M. Bhikaji (PW 1), the informant, Vishnu Sakharam (PW 2), the Gate-keeper, Govindji (PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness of the discovery. The driver of the car BML 6649 was also put in the witness-box as PW 5. He turned hostile and the prosecution cross-examined him to impeach his credit.
6. The plea of the appellant was one of plain denial of the prosecution case.
7. The courts below have concurrency found these facts:
1. That three drums had been stolen from the shed of the Bombay Port Trust on 1-8-1968 at 8.40 A.M.
2. That the drums in question were the same that had been stolen.
3. That these drums were discovered in consequence of the information (vide Ex. C) given by the accused whilst in police custody.
4. That such information, as admissible under Section 27, Evidence Act, showed that the accused was admittedly in possession of these stolen drums on 26-9-1968 and therefore, under illustration (a) of Section 114, Evidence Act, he would be presumed to be the thief.
8. Mr. Chaudhry, the learned Counsel for the appellant does not seriously dispute the first two findings. But he forcefully assails the third and the fourth. His contentions are: (a) that the courts below have not only misconstrued the statement made by the accused but have used more of it than was permissible under Section 27, Evidence Act; (b) that properly read, the admissible portion of the statement, in the circumstances of the case, did not warrant an inference under illustration (a) to Section 114, Evidence Act, that the appellant was the thief or a receiver of stolen property.
9. As against this, Mr. H. R. Khanna, learned Counsel for the State submits that the whole of the information supplied by the accused was admissible under Section 27.
10. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements.The Section says:
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.
11. The expression 'Provided that' together with the phrase 'whether it amounts to a confession or not' shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section in to operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', indubitably' 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the proveable information. The phrase 'distinctly' relates 'to the fact thereby discovered' (sic) (and?) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
12. At one time it was held that the expression 'fact discovered' in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact see Sukhan v. Crown AIR 1929 Lah 344; Gangu Chandra v. Emperor AIR 1932 Bom 286. Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this see Palukuri Kotayya v. Emperor 74 Ind App 65 : AIR 1947 PC 67 : Udai Bhan v. State of Uttar Pradesh AIR 1962 SC 1118.
13. Before proceeding further, it is necessary to be clear about the precise statement which had been made by the appellant to the Police Officer. This statement finds incorporation in the panchanama, Ex. C, and we have reproduced an English rendering of the same earlier in this judgment. While considering this statement, the High Court observed that the accused had stated that 'he bad kept them (drams) there'. We have perused the original record of the statement which is in Hindi, and we are of opinion that by no stretching of the words tins statement can be an read or construed as has been done by the High Court, The copy Ex. C of the Banchanama, in the Paper-book contains a correct English rendering of the same. What the accused had stated was: 'I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on first August'. It will be seen that he never said that it was be who had deposited the drums at the place from which they were produced. It seems the latter part of the statement which was an outright confession of the theft, was not completely ruled out of evidence and something of it was imparted into and superimposed on the first part of the statement so as to fix the responsibility for deposit and possession of the stolen drums there, on the accused.
14. Having cleared the ground, we will now consider in the light of the principles clarified above, the application of Section 27 to this statement of the accused. The first step in the process was to pinpoint the fact discovered In consequence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musa-firkhana. Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would he to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus processed, in the instant case, only the first part of the statement, viz., 'I will tell the place of deposit of the three Chemical drums' was the immediate and direct cause of the fact discovered: therefore, this portion only was admissible under Section 27. The rest of the statement, namely, 'which I took out from the Haji Bunder on fast August', constituted only the past history of the drums or their theft by the accused; it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence altogether.
I5. After culling out and rejecting the inadmissible portion, it was to be considered further whether the admissible portion of the information taken in conjunction with the facts discovered was sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen. The answer to this question, in the circumstances of the case, had to be in the negative. The drums in question were found in the compound or yard of a Musafirkhana which was a place of rest and waiting for Musafirs (travellers). It was not alleged by the prosecution - much less proved - that the drums were lying concealed, or that the compound was under the lock and key of the accused. There is not even an oblique hint that the place of the deposit of the drums was in any way under the control or occupation of the accused. The place being a Musafirkhana, was from its very nature accessible to all and sundry.
16. It must be remembered that an inference under Section 114, Illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused. Such is not the case here.
17. The facts proved by the prosecution, particularly the admissible portion of the statement made by file accused, could give rise to two alternative hypotheses, equally possible, namely: (i) that it was the accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place. The second hypothesis was wholly compatible with his innocence. In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt.
18. Accordingly, we allow his appeal, set aside his conviction and acquit him of the charge leveled against him.