State of UP vs. Deoman Upadhyaya, 1960

• Deoman Upadhyaya was married to one Dulari, who was brought up by her cousin Sukhdei. Sukhdei had gifted some agricultural land to Dulari.
• Mahabir, uncle of Deoman and the cultivator of the gifted lands and Sukhdie's lands. Deoman and Mahabir entered into talks for the sale of some of these properties situated at village Anandadih to which Sukhdei refused to agree.
• On the evening of June 18, 1958, an altercation between Deoman and Sukhdei broke out in which Deoman slapped Sukhdei on her face and threatened to smash it in the presence of Shobh Nath and Mahesh.
• On the evening of June 18, 1958, Deoman borrowed a gandasa from one Mahesh. On June 19, 1958, in the early morning, Deoman using the gandasa murdered Sukhdei, who was sleeping in the courtyard near her house. At about dawn on June 19, 1958, Deoman was seen by Khusai hurrying towards a tank and shortly was seen by Maha Dihal (taking bath in that tank).
• Deoman absconded immediately after that and was not found in the village on that day.
• On June 21, 1958, Deoman in the presence of the investigating officer, Shobh Nath, and Raj Bahadur Singh stated to hand over the gandasa and led the investigating officer and same witness to the tank and in their presence fetched the gandasa out of the tank, that was found by the Chemical Examiner and Serologist to be stained in human blood.

1. Whether Section 27 of the Indian Evidence Act violate the terms of Article 14 of the Constitution, rendering it invalid?
2. Whether Section 162(2) of the Code of Criminal Procedure invalid in so far as it relates to Section 27 of the Indian Evidence Act?

• Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By s. 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority.
• By s. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under s. 24 and complete under s. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody.
• For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in s. 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding….
• Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered.
• Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by s. 26 is against the proof of confessional statements.
• Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.

On an analysis of Sections 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge :-

• (a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
• (b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
• (c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
• (d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant.
• (e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.”

The Court Conclude in this case that "persons in custody" and "persons not in custody" do not stand on the same footing nor require identical protection, is the mere theoretical possibility of some degree of inequality of the protection of the laws relating to the admissibility of evidence between persons in custody and persons not in custody by itself a ground of striking down a salutary provision of the law of evidence the High Court was in error in holding that s. 27 of the Indian Evidence Act and s. 162, sub-s. (2), of the Code of Criminal Procedure in so far as 'that section relates to s. 27of the Indian Evidence Act' are void as offending Art. 14 of the Constitution.