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Statement made by an accused to police during investigation not admissible

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01st-Jul-2017       
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Appellate Division :
(Criminal)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Tofajjal Hussain (Md ......... Appellant
State........... Respondent
Judgment
July 20th, 2016
Code of Criminal Procedure (V of 1898)
Section 162
A statement made by an accused to a police officer in course of the investigation of a case is not at all admissible. Even a statement made by a witness to a police officer in course of investigation is not also admissible in evidence. It can be used for the purpose of contradiction by the defence. . ..... (17)
Evidence Act (I of 1872)
Section 27
This section is based on the doctrine of confirmation by subsequent facts, that is that where, in consequence of a confession otherwise inadmissible, search is made and fads are discovered which confirmed it in material points, then such discovery is a guarantee that the confession made was true. . ..... (11)
Evidence Act (I of 1872) Sections 25, 26 and 27
Code of Criminal Procedure (V of 1898)
Section 5
Section 162 is confined to statements made to a police officer in course of an investigation. Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. Section 27 seems to be intended to be a proviso to Section 26 which includes any statement made by a person whilst in custody of the police and appears to apply to such statements to whom-soever made, e.g. to a fellow prisoner, a doctor or a visitor. Such statements are not covered by Section 162. Whether to give to Section 162 the plain meaning of the words is to leave the statement still inadmissible even though a discovery of fact is made such as is contem-plated by Section 27 it does not seem necessary to decide. . ..... (15)
Code of Criminal Procedure (V of 1898)
Section 162
Statement of witnesses recorded during investigation can never be used as evidence and can only be used to contradict witnesses. ...... (13)
Code of Criminal Procedure (V of 1898)
Section 162
There is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement.
...... (8)
Pulukuri Kottayya vs Emperor, AIR 1947 PC 67; Mohmed Inayatullah vs State of Maharashtra, AIR 1976 SC 483; Sukhan vs Emperor, 30 CrLJ 414 (FB); Narayana Swami vs Emperor, AIR 1939 PC 47; Jit Singh vs State of Punjab, AIR 1976 SC 1421 and Rameshwar Dayal vs State of UP, AIR 1978 SC 1558 ref.
ASM Abdul Mobin, Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Appellant.
SS Sarkar, Deputy Attorney-General, instructed by Mahmuda Begum, Advocate-on-Record-For the Respondent.
Judgment
Surendra Kumar Sinha CJ : A delicate law point is involved in this appeal. The question is whether on the admitted facts the High Court Division is justified in maintaining the appellant's conviction under Section 19A of the Arms Act. Since this question of law will go to the root of the matter, it is necessary to consider the facts of the case and the evidence relied on by the prosecution in support of the charge.
2. Appellant Md Tofajjal Hussain @ Tofajjal Hussain has been convicted by the Special Tribunal, Nilphamari under Section 19A of the Arms Act for allegedly planting a firearm said to have been recovered on 13-12-2004 at about 145 am from the hayrick of A Hoque (PW 6). In support of the prosecution case, it has examined 13 witnesses. Of them, Md Sohrab Ali (PW 1), Md Abu Siddiqui (PW 2), Komal Mohan Chaki (PW.3) and Md Shahidul Islam (PW 4) are police personnel, who seized the arm in question, and Shamsuddin Ahmed (PW 5). A Hoque (PW 6), Istamul Huq (PW 7). Abujar Rahman (PW 9), A Hannan Shah (PW 10), Touhidul Islam (PW 11). Md Abul Hossain (PW 12) and A Baki (PW 13) are local witnesses. Of the said witnesses, PWs 5, 6 and 11 are seizure list witnesses. Other witnesses made hearsay statements.
3. PW1 stated that on the night of occurrence he along with his force went out of the police station for a special drive by recording a GD entry at about 12-30 am on 13-12-2004 and on the gale of the police station, the appellant was found standing, who disclosed his name and stated orally and also by handing over a written information with a sketch map that Abdul Hoque of his village kept a firearm concealing inside his hayrick. In pursuance of the said information, he kept Tofajjal in the police station and went to the house of Abdul Hoque and searched the hayrick located in the compound of Abdul Hoque's house in presence of the witnesses and found one local made pistol with 11 inches barrel that could be used for 0.22 bore bullet. He seized the said firearm and produced Tofajjal and Abdul Hoque in court in pursuance of CD entry No.625 under Section 54 of the Code of Criminal Procedure. In course of investigation he took Tofajjal on remand and in course of interrogation, Tofajjal disclosed that he had enmity with Abdul Hoque over litigation and before a few days of the said occurrence, Tofajjal Hussain threatened Abdul Hoque saying that he would compel Abdul Hoque to eat jail's food. As a sequel of that enmity, Tofajjal collected the said arm and kept it concealed in the hayrick of A Hoque and gave the information to him. After ascertaining the said fact, he lodged the FIR with the police station on 20-12-2004 against Tofajjal and took up the case for investigation. In course of cross-examination, he stated that at the time of recovery of the arm the accused was not present.
4. PWs 2, 3 and 4 corroborated PW 1 in material particulars. PW 2 could not say the place from where the papers were seized. PW 3 admitted that at the time of recovery of arm, Tofajjal was hot present at Abdul Hoque's house. PW 4 stated in cross-examine that after the recovery of arm, the officer-in-charge returned to the police station and seized the documents. Though, PW 1 claimed that Tofajjal had made over a written statement regarding the possession of firearm in the house of Abdul Hoque, the written document allegedly given by Tofajjal was seized at the police station after the recovery of the firearm.
5. PW 5 stated that the firearm was recovered from the hayrick of Abdul Hoque and he put his signature in the seizure list, and on the following day, he heard that Tofajjal Master along with his son intimated the police regarding the firearm. PW 6 stated that the police officer searched his hayrick as per location shown in the map and recovered the arm from his hayrick, and on reaching the police station, he saw Tofajjal and his son there. PW 7 stated that he got up at mid night on hearing news of recovery of firearm and on the following day he heard that Tofajjal and his son were arrested and that they informed the police about the arms. PW 9 stated that the firearm was found in the hayrick of Abdul Hoque and he heard the same on the following day in the market. PW 10 made similar statement. In course of cross-examination, he stated that he knew that the accused is a good man. He is the former chairman of the local Union Parishad. PW 11 stated that the firearm was recovered from the hayrick of A Hoque PW 12 also made similar statement. In course of cross-examination, he stated that in the morning he heard from his brother that Tofajjal and his son were arrested.
6. If we summarize the above evidence, we find that PWs 5, 6, 7 and 12 introduced a story about the presence of Tofajjal's son at the time of giving information to the police regarding the fire arm although the police personnel did not say anything in this regard. The other fact is that the appellant is a primary school teacher and PW 10 has admitted that he is a good man. It also reveals that there is enmity between Tofajjal and Abdul Hoque from before. Another fact revealed from the evidence is that the recovery of arm was made on 13-12-2008 at mid-night and that the FIR was lodged on 28-12-2004 after 15 days of the occurrence. The explanation given by PW 1 is that in course of investigation it was revealed that the arm was planted by the appellant to mitigate the grudge with Abdul Hoque and that the appellant threatened Abdul Hoque that he would face consequence within a few days and that he would be sent to jail.
7. The evidence that led to the recovery of arm from the hayrick of Abdul Hoque in the manner stated by PW 1 is the reproduction of the FIR story exhibit-3, and these facts have been collected after the investigation of the case. Now question is whether this FIR and the evidence of PWs.1-4 can be legally admissible in evidence. The answer to the question is emphatic no. These facts have been detected after making investigation in pursuance of a GD entry about the recovery of the arm. The prosecution did not produce GD Entry No. 625 dated 13-12-2004 pursuant to which PW1 arrested the appellant in connection with the recovery of the arm.
8. Section 162 of the Code of Criminal Procedure states that no statement made by any person to a police officer in course of investigation under Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing. There is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement.
9. Secondly, the arm was recovered as per alleged statement of the appellant but admittedly he was not present at the place of recovery. It is not the prosecution case that the appellant was in police custody for commission of an offence and that the discovery of the arm was of the basis of his information. The accused has not pointed out the place wherefrom the arm was recovered. Therefore the statements of PWs 1-4 cannot be legally admissible in evidence. The learned Deputy Attorney General fails to satisfy us under what provision this recovery can be admissible in evidence. He has drawn our attention to Section 27 of the Evidence Act. Section 27 will not be applicable to this case, inasmuch as, the fact of recovery of arm was not as per showing of the accused appellant and that appellant was not in police custody as an accused at the time of recovery of the arm. Section 27 is reproduced below;
"27. How much of information received from accused may be proved. 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. Normally this Section will be applicable against a person in police custody who produces from some place of concealment some object, such as, a dead body, weapon, ornament or any other material object said to be connected with the crime of which the informant is accused (Pulukuri Kottayya vs Emperor, AIR 1947 PC 67). This Section makes an exception against an accused person contrary to the general provisions contained in Sections 2426 which are in his favour. A statement made to a police officer is not admissible, but if in pursuance of the extra judicial confession made by an accused of a fact is actually discovered in consequence of such information that goes to prove the existence of crime charged is admissible as evidence even though such information was contained in a confession which is itself inadmissible. In the alternative, it may be said that the discovery of a fact was made as a result of information given by an accused, the evidence of discovery at the instance of the accused would be admissible against him. Section 25 merely enacts that when an accused person is being tried, a confession, which he, on a previous occasion made to a police officer cannot be used against him. It is not specified that the accused person must have been an accused person at the time of making the statement, or that he has been in police custody. This section will not apply to a case where confessional statement, made by a person, who was not-accused at the time of making the statement is tried subsequently.
11. Section 27 lays down that where an accused is in custody of a police officer and furnishes some information in consequence of which some fact is discovered then so much of such information as relates distinctly to the fact so discovered can be proved, and it would not matter whether such information amounts to a confession or not. This Section is based on the doctrine of confirmation by subsequent facts, that is that where, in consequence of a confession otherwise inadmissible, search is made and facts are discovered which confirmed it in material points, then such discovery is a guarantee that the confession made was true.
12. In this Section the expression 'fact' is used. 'Fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be. perceived by the sense but also psychological fact or mental condition of which any person is conscious. The expression 'fact discovered' used by the legislature refers to a material, and not to a mental fact. The fact discovered within the meaning of this Section must be some concrete fact to which the information directly relates. (Suklum vs Emperor, 30 CrLJ 414 (FB). The Judicial Committee of the Privy Council in Pulukuri Kottaya (supra) did not agree with the views taken by the Full Bench in ILR 58 Mad 642 (FB) and observed that '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'. This view has been approved by the Supreme Court of India in Mohmed Inayatullah vs State of Maharashtra, AIR 1976 SC 483.
13. Section 162 of the Code of Criminal Procedure enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever. It only enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of; the Evidence Act by drawing his attention; to parts of the statement intended for contradiction. Statement of witnesses recorded during investigation can never be used as evidence and can only be used to contradict witnesses.
14. On construction of Section 162 of the Code of Criminal Procedure along with Sections 25, 26 and 27 of the Evidence Act, the Judicial Committee of the Privy Council in Narayana Swami vs Emperor, AIR 1939 PC 47, has held that no statement made by a person while in police custody is admissible. This view has been approved by the superior courts of this subcontinent. In that case the accused in a murder case, made a statement to police in course of investigation regarding the victim. This statement was believed by the trial court and the High Court that the victim arrived at accused's house on previous day of occurrence, The Privy Council rejected the statement as barred by Section 162 of the Code. It held that 'No confession made by any person whilst he is in the custody of a police officer shall be proved as against such person.'
15. Section 27 is a proviso that when any fact is discovered in consequence of information received from a person accused of any offence whilst in the custody of a police officer so much of such information whether it amounts to a confession or not may be proved. It is obvious that the Section 27 of the Evidence Act and Section 162 of the Code can in some circumstances stand together. Section 162 is confined to statements made to a police officer in course of an investigation. Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. Section 27 seems to be intended to be a proviso to Section 26 which includes any statement made by a person whilst in custody of the police and appears to apply to such statements to whomsoever made, e.g. to a fellow prisoner, a doctor or a visitor. Such statements are not covered by Section 162. Whether to give to Section 162 the plain meaning of the words is to leave the statement still inadmissible even though a discovery of fact is made such as is contemplated by Section 27 it does not seem necessary to decide.
16. The Judicial Committee has explained the meaning of expression 'confession' as used in the Evidence Act observing that the word 'confession' cannot be construed as meaning a statement by an accused 'suggesting the inference that he committed' the crime. A confession must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. However, we are unable to endorse the latter view in its entirety in view of our views taken in this regard but we fully endorse to the views taken by their lordships in respect of Section 162 read with Sections 25, 26 and 27 of the Evidence Act.
17. A statement made by an accused to a police officer in course of the investigation of a case is not at all admissible. Even a statement made by a witness to a police officer in course of investigation is not also admissible in evidence as observed above. It can be used for the purpose of contradiction by the defence.
18. In Vit Singh vs State of Punjab, AIR 1976 SC 1421, the question was whether a site plan prepared by the draftsman proved by a witness relying upon which two witnesses claimed that they saw the occurrence from a distance of 160 feet and another site plan prepared by the investigation officer from which it proved that two witnesses saw the incident could be admissible in evidence. The notes in the site plan were statements recorded by police officer in the course of investigation, and accordingly it was held that the notes were hit by Section 162 of the Code of Criminal Procedure. These notes could be used only for the purpose of contradicting the prosecution witnesses concerned in accordance with the provisions of Sections 145, Evidence Act, and for no other purpose, but this was not done.
19. In Rameshwar Dayal vs State of Up, AIR 1978 SC 1558, the question was whether the statements made by the investigating officer in inquest report is a statement that can be admissible in evidence. The court was of the view that it is not admissible in evidence. In the first place, the statement is hit by Section 162 of the Code of Criminal Procedure. Any statement made by any witness to a police officer during investigation is clearly hit by Section 162 of the Code of Criminal Procedure. These notes could be used only for the purpose of contradicting the prosecution witnesses concerned in accordance with the provisions of sections 145 of Evidence Act, and for no other purpose.
20. Even if the statement of the appellant made to the police officer (PW 1) that led to the recovery of the firearm, even if taken to be true cannot be admitted in evidence, inasmuch as, the statement was made by the appellant when he was not an accused in respect of the commission of the office for which he was convicted. It may be taken as a statement of a witness or any person in course of investigation of a case and such-statement is hit by Section 162 of the Code of Criminal Procedure. The recovery of the firearm was made on 13-12-2004 and on that day the appellant was not an accused in a case in connection with the said recovery of the firearm. So, Section 27 has no manner of application in this case. Secondly, the recovery was made not in presence of the appellant and also not as per his showing. The authenticity and weight of the information which led to the discovery of a fact must be clear and beyond doubt. The manner of information, the manner of recovery and the nature of the witnesses examined in support of the recovery of the incriminating material of the offence are taken together irresistibly infer to one conclusion that it is a concocted case.
21. More so, whatever allegations made in the FIR and the statements made by PWs. 1-4 are the result of the investigation and therefore, those statements are hit by Section 162 of the Code. The appellant was not an accused on 13-12-2004 and the recovery of firearm as per his statement is a doubtful story to believe on. After recovery of the firearm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under Section 27 of the Evidence Act. The High Court Division has totally misconstrued Section 27 of the Evidence Act and illegally held that the recovery of the firearm was on the basis of the statement made by the appellant with a sketch map 'pointing to an arm which is sufficient to have a knowledge, possession and control by himself and nobody else, even not Abdul Hoque'. This conclusion arrived at is based on misconception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant.
The appeal is allowed. The conviction and sentence of the appellant is set aside.

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