Mohmed Inayatullah vs. State of Maharashtra, 1975

• On 1-8-1968, around 8.40 a.m., Murari Bhikaji Bidya who was the Shed Superintendent of Haji Bunder, was informed by the Canteen boy named Shri Babu Durga that a car had come inside Haji Bunder and removed 3 small drums which were lying between Shed ‘A’ and Canteen in an open place. Shri Joshi, the gatekeeper was asked to go out and see what the matter was but before he could reach the gate, the car left.
• The gatekeeper shouted for the driver to stop the car, but the driver drove away at a high speed. The gatekeeper, however, noted the number of the car which was 6649.
• The Shed Superintendent went to the open place in between ‘A’ Shed and Canteen where the drums were lying to inspect whether the drums were actually missing. There was a gap between the bigger size drums from where the smaller ones had been removed showing that three small drums had been removed. I.R. of the theft was lodged with the police by the Shed Superintendent at 9.15 a.m. on the same day.
• Sub-Inspector Thorat, the investigating officer, after making inquiries from the Regional Transport Office, 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, accompanied by the accused (appellant) appeared before the Sub-Inspector in the Police Station on 26-9-1968. The Sub-Inspector took the accused into custody.
• He then interrogated the accused who made a statement which was recorded by the Sub-Inspector. Rendered into English, this statement (incorporated in the Panchnama) read as: “I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on 1st August.”
• The accused then led the Police Officer and the Panchas to a Musafirkhana in Crowford Market and pointed out the three drums lying there, bearing the markings, ‘ACC I Phosphorous Pentaoxide’.
• The drums were identified by the Shed Superintendent as the same which had been stolen.
• The appellant, Mohmed Inayatullah, was tried 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.

• Whether or not the Appellant, Mohmed Inayatullah is guilty of theft (S. 379 I.P.C.) of three chemical drums containing phosphorus pentaoxide from Haji Bunder on 1-8-1968 at 8.40 a.m.?
• Whether or not the disclosure statement made by the Appellant Mohmed Inayatullah is admissible as a whole as per S. 27 of the Indian Evidence Act, 1872?
• Whether or not a presumption arises against the Appellant Mohmed Inayatullah under the Illustration (a) to S. 114 of the Indian Evidence Act, 1872?

ARGUMENT:- 

The learned Counsel for the appellant argued that it does not seriously dispute the first two findings. But he forcefully assails the third and the fourth. His contentions are:

1. that the courts below have not only misconstrued the statement made by the accused but have used more of it than was permissible under Sec. 27, Evidence Act;
2. that properly read, the admissible portion of the statement, in the circumstances of the case, did not warrant an inference under illustration (a) to Sec. 114, Evidence Act, that the appellant was the thief or a receiver of stolen property.

JUDGMENT:- 

The Court viewed “Section 27 of the Indian Evidence significance of the section starting with the expression “Provided that” and the phrase “whether it amounts to confession or not” were discussed in some detail; the conditions necessary for bringing the section into operation were explained-

• the first condition being discovery of a fact;
• second being that discovery of such fact must be deposed to;
• third being that at the time of receipt of such information, the accused must be police custody;
• fourth, that only so much of the information as relates distinctly to the fact thereby discovered is admissible.The meaning of the word 'distinctly’ was also discussed in the context of the section.

After discussing various facets, it was held that the “fact discovered” is not restricted to physical or material fact which can be perceived by the senses, but it also includes a mental fact. Referring to the decision of Pulukuri Kottya’s (supra), it was held that the expression “fact discovered” includes not only the physical object, but also the place from which it is produced and the knowledge of the accused as to this.

The Court Concluded in this case that it must be remembered that an inference under s. 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.

The facts proved by the prosecution, particularly. The admissible portion of the statement made by the accused could give rise to two alternative hypotheses, equally possible, namely:

1. that it was the accused who had himself deposited the stolen drums in the Musa firkhana, or
2. 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.

Accordingly, we allow his appeal, set aside his conviction and acquit him of the charge levelled against him.