Madras Law Journal - Criminal (Case Law)/1959/Volume 1/Bejjanki Rajam, In re. -- [1959] 1 MLJ (Crl) 1
(1959) 1 MLJ (Crl) 1
Bejjanki Rajam, In re.
Equivalent : I.L.R. 1959 Mad. 932,1959 M.W.N. 1,A.I.R. 1958 Mad. 608(F.B.).
IN THE HIGH COURT OF JUDICATURE OF ANDHRA AT GUNTU...
Mr. Justice Jaganmohan Reddy and Mr. Justice Sanjeeva Row Nayudu.
Crl. Appeal No. 381 of 1957.
30th November, 1999..
In Re
Criminal Procedure Code (V of 1898 ), section 162 -- Scope of -- Statement made by an accused person to a police
 officer during investigation of a different offence -- Whether hit by section 162 -- Admissibility of such statements.
 Evidence Act (I of 1872 ), sections 25 , 26 and 27 -- Scope and effect.
On the question whether a statement (Exhibit P-10) purported to be made by an accused person to a police officer is
admissible in evidence having regard to section 162 , Criminal Procedure Code, and sections 25 and 27 of the Evidence
Act,
 Held : Per  Jaganmohan Reddy, J.-  The statement of the accused was made during the investigation of the murder of  V 
and consequently it is hit by section 162, Criminal Procedure Code. Even otherwise, in so far as the confession is
concerned, it is hit by section 25 of the Evidence Act. It is not a case of a complaint to the police in the case of the death
of   R.   Even if it is considered to be a statement made during the investigation of the accused's mother's death under
section 174 , Criminal Procedure Code, it is one made in the course of investigation and is inadmissible under section
162, Criminal Procedure Code. Exhibit P-10 is inadmissible and must be ruled out.
On the question of statements under section 27 of the Evidence Act, it is well to remember that the view taken by the
Full Bench Judgment of the Madras High Court in   Athappa Gounden v. Emperor Athappa Gounden v. Emperor  (1937)
2 MLJ. 60: I.L.R. (1937) Mad. 695, was overruled by their Lordships of the Privy Council in   Kotayya v. Emperor 
Kotayya v. Emperor  (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.). The Full
Bench while admitting that the weight of Indian authority was against them, nevertheless took the view that any
information which served to connect the object discovered with the offence charged was admissible under section 27.
The facts in that case were that the accused charged with an offence of murder made a confession in police custody and
the Court admitted the confession because in the last sentence, there was an offer to produce two bottles, a rope and a
cloth gag which according to the confession were used in or were connected with the commission of the murder and the
objects were in fact produced. The last sentence in the confession relating to the offer to produce the bottles, etc., it may
be stated was easily severable. But the Court however took the view that as the objects produced were not in themselves
of an incriminating nature, their production would be irrelevant unless they were shown to be connected with the
murder, and there was no evidence so as to connect them apart from the confession. It also took the view that the thing
must be connected with the crime in question in order to come within the rule of relevancy aid down in section 5 of the
Evidence Act. With this reasoning, however, their Lordships of the Privy Council did not agree. The view of the Privy
Council has set at rest a great controversy in the Courts of India, and even after our Constitution came into force, has
been approved specifically by several judgments of the Supreme Court of India. The doubts expressed, based as they are
on the meaning to be given to the words, 'whether it amounts to a confession or not' have also been dispelled by their
Lordships of the Supreme Court in the case of 
Page 1
(1959) 1 MLJ (Crl) 1 at 2
 Ramakishan Mithanlal Sharma v. State of Bombay Ramakishan Mithanlal Sharma v. State of Bombay (1955) S.C.J.
129: (1955) 1 MLJ. (S.C.) 66: A.I.R. 1955 S.C. 104. Again in  Pershadi v. State of Uttar Pradesh Pershadi v. State of 
Uttar Pradesh A.I.R. 1957 S.C. 211, the admissibility of the statement of the accused leading to the discovery of certain
clothes were considered in the light of the Privy Council case. The statement of law in the above cases lucidly and
tersely sums up the law on the point. Once a principle is well-established and is laid down by the highest Court of the
land, it is the law and can only be displaced by legislation. It is too late in the day to disinter the case of    Athappa
Gounden v. Emperor Athappa Gounden v. Emperor  I.L.R. (1937) Mad. 695: (1937) 2 MLJ. 60  Kottayya v. Emperor 
Kottayya v. Emperor   L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: (1947) 1 MLJ. 219: A.I.R. 1947 P.C. 67   Ramakishan
 Mithanlal Sharma v. State of Bombay Ramakishan Mithanlal Sharma v. State of Bombay (1955) S.c.J. 129: (1955) 1
MLJ. (S.C.) 66: A.I.R. 1955 S.C. 104;   Pershadi v. State of Uttar Pradesh Pershadi v. State of Uttar Pradesh  A.I.R.
1957 S.C. 211, considered.
Per  Sanjeeva Row Nayudu, J.-  Since section 162, Criminal Procedure Code, is a delimiting section encroaching on the
normal rules of evidence, it should be construed strictly and confined to the language and the wording employed in the
section and should not be extended any further. On a careful consideration of the section, where a statement was made
by any person to a police officer in the course of an investigation that was being conducted by him at that time in
respect of any offence which was under investigation at that time, it is inadmissible subject to the proviso. It follows
from this that if a statement was made by any person to a police officer in respect of an offence which was not under
investigation at the time when such statement was made, then that statement is not hit by section 162, Criminal
Procedure Code and cannot be excluded from evidence at an enquiry or trial in respect of that offence which was not
under investigation at that time. Applying this, Exhibit P-10 which purports to be a complaint given by the accused
(appellant) to the police officer, concerning the death of his mother is not hit by section 162, Criminal Procedure Code,
as the offence of the murder of  R,  the mother of the accused (appellant) was not under investigation at that time.
Section 25 of the Evidence Act being unconditional and absolute, excludes from evidence all statements made to police
officers by accused persons, which are in the nature of confessions. As this is a limiting section encroaching upon the
normal rules of evidence, it must be construed strictly. The prohibition contained in section 25 is only in respect of 
proving confessions and that too against persons accused of any offence. If either a statement does not amount to a
confession or if portions thereof do not amount to a confession, there is no objection to receiving them in evidence. If 
there are portions of the statement which are sought to be used for and in favour of an accused person, such use of the
portions of the statement is not excluded by section 25 of the Indian Evidence Act. Applying these principles to the
facts of the case, that portion of Exhibit P-10 which is not in the nature of a confession, can certainly be received in
evidence. Again, in respect of those portions of the statement which are confessional in character, so long as the use of 
such portions is made in favour of the accused-as for example where it contains an excuse for committing a crime which
if believed may either serve to mitigate the offence or exculpate the accused-then such portions can be received in
evidence.
(A portion only of Exhibit P-10 excluded as inadmissible.)
Reading sections 26 and 27 together, the conclusion necessarily follows that the information taken as relevant under
section 27 could also amount to a confession and that it could not have been the intention of the Legislature to exclude
the information furnished by the accused which relates distinctly to the facts discovered and which is therefore relevant
under section 27 just because it amounts to a confession. If the information discovers the place from which the object is
produced and also the knowledge that that place was known to the accused, of course, it also discovers the knowledge
of the accused that that weapon was the weapon concerned in the crime. If the information given is to be correlated to
the facts discovered, then that connection is equally established in the case of discovery of the fact that the weapon
produced was to the knowledge of the accused the weapon used in the commission of the crime. It is extremely difficult
to exclude that part of the information which directly leads to the discovery of this material fact just because it amounts
to a confession, when the section itself contemplates the reception of information even when it amounts to a confession.
(  Kotayya v. Emperor Kotayya v. Emperor  (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C.
Page 2
67 (P.C.), considered-Correctness doubted-Requires reconsideration.)
In considering the guilt or innocence of an accused person, one has necessarily to judge the issue on the prosecution
evidence alone, of course, taking into account such admissions as the accused might voluntarily have made and which
in law are admissible could be taken as such admissions and the defence evidence, if any, produced by the accused.
Appeal against the Order of the Court of Session of the Khammam Division in Case No. 9/8 of the Calendar for 1957,
dated 14th October, 1957.
The Additional Public Prosecutor  (Mohammed Mirza), for the State.
The Court delivered the following Judgments:
 Jaganmohan Reddy, J .-I have had the advantage of perusing the judgment of my learned brother. The facts of the case
have been set out fully in the judgment about to be pronounced and it would be unnecessary to reiterate them.
While agreeing with the conviction and sentence proposed to be passed against the accused, there are, however, two
matters to which I wish to address myself,  viz.,
(1959) 1 MLJ (Crl) 1 at 3
(1) to what extent is the statement of the accused in Exhibit P-10 admissible in evidence, and (2) what is the scope of 
section 27 of the Evidence Act. I would not, after the authoritative and weighty pronouncement of the Judicial
Committee in  Pulukuri Kotayya's case1, have ventured to examine the whole matter as if it was  res Integra,  but having
regard to the observations of my learned brother Sanjeeva Row Nayudu expressing doubts on that judgment, I hasten,
with the greatest respect, to say that I am unable to find myself in agreement with him.
On the first question, it may be stated that Exhibit P-4 is the F.I.R. relating to the murder of Vanga Venkati issued on
the information given by his wife, P.W. 16 Veeramma, in Exhibit P-5 on 27th June, 1955, at 7-15 a.m. The
Investigating Officer Deendayal, P.W. 2, who recorded the statement, registered a case against the accused for an
offence under section 302 as Crime No. 29 of 1957 and issued the F.I.R. He thereafter went to the house of the accused
and there found the dead body of Rajamma also and that the dead body of Venkati was lying in the cattle-shed. He then
says that when he questioned the accused regarding the death of Rajamma, the accused said that his mother was raped
and murdered by Bootla Venkati and on seeing this he grew annoyed and murdered him with a roof-bolt. P.W. 2 states
that he then recorded the accused's statement and sent it to the Sub-Inspector. This is the F.I.R., Exhibit P-4-A. It may
be noticed from Exhibit P-4-A that this statement of the accused was recorded at 8 a.m., and if this is considered with
the evidence of P.W. 2 in cross-examination that he arrested the accused at 7-45 a.m., it becomes clear that the
statement by the accused on the interrogation of the police officer was given after he was arrested. It is thus clear
beyond doubt that the accused did not give a complaint concerning the death of his mother so as to give it the status of a
first information concerning the death of his mother, but in explaining the death of Vanga Venkati he was stating how
his mother was killed and by whom and therefore it cannot be said that the death of the accused's mother was not under
investigation when the accused made the statement Exhibit P-4-A. It is thus seen that as soon as P.W. 2 found the body
of Rajamma and that of Venkati in the cattle-shed, he proceeded to arrest the accused and to question him regarding the
murder of Venkati; The statement of the accused was thus made during the investigation of the murder of Venkati and
consequently it is hit by section 162, Criminal Procedure Code. Even otherwise, in so far as the confession is concerned,
it is hit by section 25 of the Evidence Act. In my view, it is therefore, not a case of a complaint to the police in the case
of the death of Rajamma. Even if it is considered to be a stater lent made during the investigation of the accused's
mother's death under section 174 , Criminal Procedure Code, as indeed P.W. 2 suspected foulplay, it is one made in the
course of investigation and is inadmissible under section 162, Criminal Procedure Code. I am clearly of the view that
Exhibit P-10 is inadmissible and must be ruled out.
Page 3
 
Even after it is ruled out, from the statement of P.W. 19 Ambala Rajam as well as the statement of the accused under
section 342 it would appear that by the time the accused returned after informing P.W. 16 about the drunken state of her
husband he found his mother was raped and murdered by Venkati. This is also what is stated in Exhibit P-10 though in
the evidence of P.W. 19 and his statement under section 342 he asserts that Mande Rajam informed him about these
facts after his return and that he confessed to him that it was he, Mande Rajam who on seeing what Venkati did, had
beaten Venkati and killed him. On hearing this, accused had given some four or five blows to Mande Rajam. The case
of the accused therefore was that his mother was raped and killed by Venkati and not by him. The Sessions Judge
considered the evidence against the accused for the murder of his mother insufficient but thought that Bootla Venkati
was so drunk, he could have hardly raped and killed a woman of 65 years of age, particularly the mother of a man who
always obliged him with drink. The question is not whether a person would have attempted to commit rape of an old
woman of 65 years, but whether a person in a drunken state overcame any such aversion and attempted such an act.
That this allegation was put forward at the very commencement of the case is evident also from the fact that the police
(1959) 1 MLJ (Crl) 1 at 4
sent the clothes of the deceased Rajamma to the Chemical Examiner for a report as to whether there was any semen or
spermatozoa thereon. The negative report does not reject the theory of an attempt made to rape her and to have killed
her in making that attempt. On the question whether the accused killed Venkati on finding that Venkati had tried to rape
his mother and killed her or had believed that this was so and in that belief was provoked to cause injuries on Venkati
with a roof-bolt as a result of which Venkati died, I agree with my learned brother that the accused is guilty of the
offence under section 304. The injury to the anus of the deceased Venkati is an indication of the intensity of anger
aroused in the accused on the information that his mother was raped. The defence that Venkati was killed by one Mande
Rajam as sought to be corroborated by P.W. 19 is not established. P.W. 19 is an interested witness, as his wife's mother
and the accused's mother are sisters and according to P.W. 14 Mande Rajam was brought up by the accused about ten
years ago but was not with him since then. That apart, Exhibit P-7 relating to the recovery of the roof-bolt on the
information furnished by him corroborates the prosecution evidence that it was used in the commission of the offence.
This bolt was sent to the Chemical Examiner who found human blood on it.
Now on the question of statements under section 27 it is well to remember that the view taken by the Full Bench
 judgment of the Madras High Court in   Athappa Gounden.  v.  Emperor 1 was overruled by their Lordships of the Privy
Council in  Kotayya v.  Emperor 2. The Full Bench while admitting that the weight of Indian authority was against them,
nevertheless took the view that any information which served to connect the object discovered with the offence charged
was admissible under section 27. The facts in that case were that the accused charged with an offence of murder made a
confession in police custody and the Court admitted the confession because in the last sentence, there was an offer to
produce two bottles, a rope and a cloth gag which according to the confession were used in or were connected with the
commission of the murder and the objects were in fact produced. The last sentence in the confession relating to the offer
to produce the bottles, etc., it may be stated was easily severable. But the Court, however, took the view that as the
objects produced were not in themselves of an incriminating nature, their production would be irrelevant unless they
were shown to be connected with the murder; and there was no evidence so as to connect them apart from the
confession. It also took the view that the thing must be connected with the crime in question in order to come within the
rule of relevancy laid down in section 5 of the Evidence Act. With this reasoning, however, their Lordships of the Privy
Council did not agree, observing at page 71:
"..... The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact, can
afford no justification for reading into section 27 something which is not there, and admitting in evidence a confession barred by
section 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can
seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link 
in the chain of proof, and the other links must be forged in manner allowed by law.
In their Lordships' opinion   Athappa Gounden   v.  Emperor 1 was wrongly decided, and it no doubt influenced the decision now
under appeal."
Page 4
 
This view of the Privy Council had set at rest a great controversy in the Courts of India, and even after our Constitution
came into force, has been approved specifically by several judgments of the Supreme Court of India. The doubts
expressed, based as they are on the meaning to be given to the words, 'whether it amounts to a confession or not' have
also been dispelled by their Lordships of the Supreme Court in the case of   Ramakrishan Mithanlal Sharma v.  State of 
 Bombay3 Bhagwati, J., observed at pages 115-116 as follows:
"Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act which provide that no confession made to a police
officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the
custody of a police officer unless it be
(1959) 1 MLJ (Crl) 1 at 5
made in the immediate presence of a Magistrate, shall be proved as against such person. Where, however, any fact is discovered in
consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the
information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not.
"The expression 'whether it amounts to a confession or not' has been used in order to emphasise the position that even though it
may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the
accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some
guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But
clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is
required to relate"- Pulukuri Kotayya v.  Emperor 1.
Again in  Pershadi  v.  State of Uttar Pradesh2 the admissibility of the statement of the accused leading to the discovery
of certain clothes was considered in the 1ight of the Privy Council case. Imam, J., stated at pages 214-215 thus
".....On the question of admissibility of the appellant's statement to the police, Agarwala, J., thought it to be admissible and we
think rightly, having regard to the decision of the Privy Council in  Pulukuri Kotayya  v.  Emperor 1. Sir John Beaumont in delivering
the judgment of the Privy Council set out the entire statement made by the accused No. 6 to the police and held that the whole of 
that statement except the passage 'I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come
'was inadmissible. In other words, the statement 'I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will
show if you come' was admissible. In the course of the judgment Sir John Beaumont observed:
"In their Lordships' view 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 the fact. Information as to past user, or to the past history of the object produced is not related to its
discovery in the setting in which it is discovered. Information supplied by a person in the custody that, 'I will produce a knife
concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the
discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is used in the
commission of the offence, the fact discovered is very relevant."
The statement of law in the above cases lucidly, if I may say so with respect, tersely sums up the law on the point. Once
a principle is well-established and is laid down by the highest Court of the land, it is the law and can only be displaced
by legislation. In my view, speaking personally, it is too late in the day to disinter the case of    Athappa Gounden   v.
 Emperor 3.
In the result, the conviction and sentence against the accused are set aside and in its place the accused is convicted under
section 304 and sentenced to seven years' R.I. The appeal of the accused is, therefore, partly allowed.
Sanjeeva Row Nayudu, J .-This appeal has been preferred against the judgment and order of the Court of Session,
Khammam, in Sessions Case No. 9/8 of 1957 convicting the appellant, Bejjanki Rajam, on a charge under section 302,
Indian Penal Code, for causing the death of one Bootla Venkati and sentencing him to imprisonment for life.
The appellant was originally charged by the learned Sessions Judge, Khammam, with having committed the murder of 
Page 5
 
Bejjanki Rajamma, his mother, and of Bootla Venkati on or about the 26th June, 1957. Although the prosecution
averred the commission of two murders, a single charge was framed in respect of the name. The appellant, however,
was found not guilty of the charge of murder of Bejjanki Rajamma and there being no appeal in respect of this acquittal
by the State, we are concerned in this appeal only with the alleged murder of Bootla Venkati.
The prosecution case, briefly is as follows: The appellant, who was a contractor with the Singareni Collieries for the
supply of labour, was residing in the village of Kothagudam. The mother of the appellant, the late Bejjanki Rajamma,
also used to live with the appellant in his house at Kothagudam. When she noticed that the appellant was having illicit
intimacy with one Shantamma, the wife of the nephew of the appellant, the appellant's mother protested against this
conduct and this resulted in the appellant's beating and driving away his wife, Ramakka, his mother, the
(1959) 1 MLJ (Crl) 1 at 6 
deceased Rajamma and his sister as well as her son and daughter-in-law, Shantamma, who, consequently, went and took 
up a separate residence. On the day previous to the date of the occurrence, namely, 26th June, 1957, the appellant had
brought his mother from the house of his sister to stay with him. On 26th June, 1957, at about 5 p.m., the appellant went
over to the house of his friend, Bootla Venkati (the second deceased in this case) and took him to his house as usual and
both the appellant and Bootla Venkati settled down to drink in the house of the appellant. They had, apparently, been
continuously drinking and were in a state of intoxication by about 8-30 p.m., and it is the prosecution case that at about
this time, the appellant asked his mother, who was lying on a cot, as to whether she would take any  biriyani or rice and,
on her refusing to take anything, he forcibly lifted her from the cot and gave several severe blows with his fists, thereby
causing fracture of four ribs on each side and also a serious injury to her pleura and lungs which resulted in her death.
The appellant was then stated to have taken her and thrown her on a cement slab used as a bathing stone. On this,
Bootla Venkati, who was also at that time in a state of intoxication and who was seated in another room, came out and
objected to the appellant beating his mother, saying that if he beat like that she would die. On this, the appellant seems
to have flared up against Venkati saying that, in spite of taking drinks at his place and eating his food, he (Venkati) was
challenging him and so saying, he gave severe blows with his fists and Venkati fell down under the impact of these
blows. As he was trying to get up, the appellant is said to have taken a roof-bolt from his house (  i.e., a thick iron-rod
like a crow-bar about four feet long and one and half inches thick) and inflicted some blows on the shoulder and neck of 
Venkati, as a result of which he fell down unconscious. The appellant then lifted and dragged him out through the door
into the compound and threw him near the wooden logs in front of his door and then sat on his stomach and fisted him
on his face and chest, saying "Go and inform your babu; you want liquor; you want brandy" or words to that effect.
Sangaverapu Raiamallu   alias   Aggipore (P.W. 14) who works under the appellant and supervises the work of the
labourers and comes to report daily to the appellant, happened to come to the house of the appellant that evening at
about 7-30 p.m., and was waiting there to get a chance to talk to the appellant. When he saw Venkati being dragged
down, he tried to intervene and told the accused that it was not good to kill him. On this, the appellant appears to have
threatened the witness, pointing the roof-bolt at him, whereupon the witness slipped over to a side and hid himself in a
thorn-fence and in the darkness from where he saw the further activities of the appellant, namely, his sitting on the
stomach of Venkati and fisting him, It was at this time that another witness, Allakonda Durgaiah (P.W. 15) who seems
to have been passing along the road running by the side of the fence of the appellant's house, heard the noises and came
near the fence and saw the appellant beating Venkati sitting on his chest. He also saw P.W. 14 sitting near the fence and
out of fear he ran away from that place. He, however, reached Venkati's house and informed his wife, Vanga Veeramma
(P.W. 16) that her husband was being beaten by the appellant and that she should take steps to rescue him. On this,
Veeramma proceeded to the appellant's house and saw the appellant beating her husband sitting on his chest and out of 
fright she returned and went to the houses of Peer Gulam (P.W. 10) and Narapati Pentaiah (P.W. 11) and requested
them to rescue her husband but they refused saying that they were not doing well........Veeramma thereupon returned to
her house and out of fear she stayed in. At about 11 p.m. the appellant himself came to Veeramma's house and called
'Munshi' 'Munshi' (as he usually addresses Bootla Venkati) and enquired if Munshi was in. Veeramma replied that he
was not, on which the appellant appears to have stated that Venkati was drinking and revelling, that he was lying down
in his house and that he should be taken away from there. Veeramma said that she would not come out in the night and
on this the appellant went away. After this, the appellant proceeded to the houses of his relations, Ambala Rajam (P.W.
Page 6
 
18) and Gallipalli Posham (P.W. 17) and others and brought them to his house saying that his mother was dead. On their
arrival there, Chinna Ellaiah, son of Rajam, lifted the body of Venkati and put it in the appellant's cattle-shed and
Chinna Ellaiah and P.W. 8 lifted the body of Rajamma from the cement slab and placed her in the inner room on a cot.
(1959) 1 MLJ (Crl) 1 at 7 
On the following morning,   i.e., 27th June, 1957, at about 5-30, Veeramma, wife of Venkati, went to the appellant's
house and found her husband lying in the cattle-shed of the appellant groaning and in a dying condition. He did not
respond to her questions and considering the fact that her husband's condition was very precarious, she brought her
daughter to the place and very shortly thereafter Venkat expired. On this, Veeramma proceeded to the police station and
made an oral complaint to the Sub-Inspector, K. Deendayal, (P.W. 2), Exhibit P-5, who registered a case under section
302, Indian Penal Code and issued the First Information Report, Exhibit P-4, which was received on that very day,  i.e.,
on 27th June, 1957, in the Magistrate's Court. The Investigating Officer then proceeded to the spot and on coming to the
appellant's house he found the dead body of Rajamma in a room in the appellant's house and that of Venkati in the
cattle-shed. When the Sub-Inspector questioned the appellant, the latter appears to have made a statement, recorded as
Exhibit P-10, wherein he stated that Venkati had committed rape on his mother and killed her, that it was then that the
appellant had given a slap to Venkati on which he went and fell at a distance and that thereafter the appellant took a
roof-bolt and beat Venkati who subsequently died. On this, the Sub-Inspector of Police registered the F.I.R. (Exhibit
P-4-A) under section 302, Indian Penal Code and the name of Bootla Venkati, is shown as the accused in that F.I.R.
Inquests were held on the dead bodies of Bejjanki Rajamma and Bootla Venkati and they were sent for the  postmortem
examination. The   postmortem   examination revealed that there were thirteen injuries in all, on the body of Bootla
Venkati, that there were fractures of the second and the third ribs on either side, that the skull was fractured near the
base and that there was fissure in the liver, as also a tear in the pleura corresponding to the broken ribs. Bleeding was
noticed through the anus. In the opinion of the Medical Officer, these injuries were caused by a blunt weapon, like
roof-bolt, M.O. 2 and that death was caused as a result of shock and haemorrhage, produced by these injuries.
In the case of Bejjanki Rajamma with which we are not concerned in this appeal death was due to fracture of the thyroid
cartilage and of hyoid bone and fracture of 2nd, 3rd and 4th and 5th ribs on either side, each rib being broken in two
places both in front and in the back. Pleura and lungs were found punctured on account of the fracture of the ribs. There
were contusions on the chest and neck and death in the case was due to shock and haemorrhage as a result of the
injuries. The Medical Officer was also of the opinion that these injuries could be caused either by a blunt weapon or by
hands.
It is also the prosecution case that the appellant made a confessional statement before mediators on 27th June, 1957 and
that as a result of information given by the appellant, the police proceeded to his house and recovered the roof-bolt
(M.O. 2), which is said to have been used by the appellant in this case in causing the death of Bootla Venkati under
Exhibit P-7, the panchanama, wherein the fact of recovery at also the furnishing of information by the appellant were
recorded.
The plea of the appellant in the committal Court was that he did not beast Bootla Venkati with the roof-bolt, that it did
not belong to him but to someone else, that he did not know wherefrom the police had brought it, that the witness had
given evidence against him on account of previous enmity in connection with money matters and that the allegation that
he had illicit intimacy with Shanthanma was baseless and false.
In the Sessions Court, he denied everything. He, however, admitted that he informed Veeramma in the night that Bootla
Venkati was in a drunken state and that he said that he was not coming home when he (appellant) asked him to some
and that Veeramma told him that as there was none in the house, she would not come in the night. He discredited the
evidence of Aggipore (P.W. 14) on the ground that P.W. 14 used to work under the appellant, that he falsified accounts
and so the appellant had suspended him and that this must be the result of the grudge he bore against the appellant. He,
however, admitted that he gave his post-office pass book to Aggipore to draw money from the post-office on the
morning of 27th June, 1957, but stated that the witness did not give him the money. The appellant also admitted
(1959) 1 MLJ (Crl) 1 at 8 
Page 7
 
that he had gone and called his relatives, that when he returned he found Venkati lying in his cattle-shed, that he saw
Rajamma's body on the cement slab, that he lifted the body and placed it in the inner room, that Chinna Ellaiah stated
that there was much more to be seen in the cattle-shed, that on his going there he found Venkati lying there opening his
mouth and saying 'Ha¡ Ha¡'and that Ellaiah poured water in Venkati's mouth. He further stated that he saw his mother
on the cement slab naked and lying there dead. His further statement in answer to the question put to him by the learned
Sessions Judge is as follows:
"I came to my house at about 8-30 or 9 p.m. I took a bath. I took some liquor. Half an hour after that Bootla Venkati came. When
he came he was fully drunk already. We were talking together and while I was taking liquor, I gave him also one dram of liquor. It
was then 10-15 or 10-30 p.m. My mother asked me why the other man was there. He was fully drunk and doing noise and asked me
to take him outside. Then I told him, Munshi, let us go to your house; it is late in the night. He said he will not come. Therefore, I
went to his house because he refused to come with me and I informed his inmates that Venkati was drunk and unconscious. When I
came back to my house, I saw my mother lying dead on the cement slab and Bootla Venkati was lying outside. I first saw Venkati
lying outside and thought why he was here. So I went inside and found my mother dead on the cement slab. I asked the boy Mande
Rajam whom I had brought up and who was inside, as to how this all happened and how Rajamma was lying dead there, and
Venkati outside. He said that Bootla Venkati who was in drunken state tried to rape the mother and he (Venkati) lifted her and
placed her against the cement slab and at that time she made cries and Venkati strangulated her and when he heard the noise he
came out and saw all that was going on. He saw all this and that Bootla Venkati committed rape on mother and that therefore he
gave two Hows to Venkati. Then I said why he allowed things to develop to such an extent and why he was sleeping all the while
and so out of anger I gave Mande Rajam three or four slaps. I then went out to Panjabi Gadda to bring all our relatives and
meanwhile Mande Rajam disappeared. All our relatives came and we lifted the dead body of my mother and placed it inside. It was
raining. I could not go out anywhere, and I remained in the house with my children. Next morning, I woke up at 7 a.m. I went and
saw Venkati still alive. I took a withdrawal form from post-office an 1 wrote and gave application for drawing money for funeral
expenses of my mother. Bootla Venkati's wife and daughter came and saw. I sent for all our relatives and stayed at my house. The
police also came and asked me not to go anywhere. I did not go anywhere."
When asked whether the appellant had any witnesses to be examined in his defence, he said that any defence could not
be led about an incident that occurred in the night time.
In considering the truth or otherwise of the prosecution story, we feel that it is helpful to first of all take into
consideration the facts which are not in dispute and they may be set out herein.
(1) On the date of the occurrence, Bejjanki Rajamma, the mother of the appellant, was living in his house.
(2) The second deceased, Bootla Venkati, and the appellant were close friends and were in the habit of 
meeting in the house of the appellant for drinks.
(3) On the date of the occurrence,  viz., 26th June, 1957, in the evening they had similarly met and were
drinking together.
(4) Both the appellant and the deceased (Bootla Venkati) were in a slate of intoxication on the night of 26th
June, 1957.
(5) The appellant proceeded to the house of Venkati at about 11 p.m., and informed the deceased's wife,
Veeramma, that Venkati was lying in his house dead drunk and that she should take him away from
there.
(6) A little later, the appellant went to the houses of his relations, P.Ws. 10 and 11 and informed them that
his mother was dead and requested them to come to his house.
(7) The appellant and his relatives reached the appellant's house and found the dead body of his mother lying
naked on the cement slab outside the house.
(8) At the same time, Venkati was seen without anything below his waist lying near the logs, groaning and
was carried to the cattle-shed where he died early morning.
(His Lordship then proceeded to discuss the evidence in the case.)
The learned counsel for the appellant contends that Exhibit P-10 which purports to be a statement made by the appellant
to P.W. 2, who is a police officer is
Page 8
(1959) 1 MLJ (Crl) 1 at 9
inadmissible in evidence, having regard to section 162 of the Code of Criminal Procedure and section 25 of the Indian
Evidence Act. We shall first consider the objecttion with reference to section 162, Criminal Procedure Code, which is in
these terms:
"(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if 
reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof,
whether in a police diary, or any part of such statement or record, be used for any purpose (save as hereinafter
provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement
was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been
reduced into writing as aforesaid, any part of his statement if duly proved may be used by the accused, and with
the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section
145 of the Indian Evidence Act, 1872 and when any part of such statement is so used, any part thereof may also
be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his
cross-examination.
(2) * * * * *"
Under this section, before a statement made by any person to a police officer in the course of an investigation that is
being conducted by him is excluded from evidence, the following conditions would have to be fulfilled:
(1) The statement should have been made by any person to a police officer; and
(2) The making of the statement should have been in the course of an investigation conducted by the said
police officer under Chapter XIV, Criminal Procedure Code. Once these two conditions are fulfilled, the
use of that statement for any purpose except for the purpose specified in the proviso is prohibited onlyat
any enquiry or trial in respect of the offence which was under investigation at the time when such
statement was made..
Since this is a de-limiting section encroaching on the normal rules of evidence, it, in our opinion, should be construed
strictly and confined to the language and the wording employed in the section and should not be extended any further.
On a careful consideration of the section, we are clearly of opinion that where a statement was made by any person to a
police officer in the course of an investigation that was being conducted by him at that time in respect of any offence
which was under investigation at that time, it is inadmissible subject to the proviso. It follows from this that if a
statement was made by any person to a police officer in respect of an offence which was not under investigation at the
time when such statement was made, then that statement is not hit by section 162, Criminal Procedure Code, and cannot
be excluded from evidence at an enquiry or trial in respect of that offence which was not under investigation at that
time. Applying this to the present case, Exhibit P-10, which purports to be a complaint given by the appellant to the
police officer, P.W. 2, concerning the death of his mother and accusing the deceased, Bootla Venkati, as the person who
had committed the murder, is not, in my opinion, hit by section 162, Criminal Procedure Code, as the offence of the
murder of Bejjanki Rajamma, the mother of the appellant, was not under investigation at that time.
The next question for consideration is whether Exhibit P-10 is not hit by section 25 of the Indian Evidence Act which
runs as follows:
"No confession made to a police officer shall be proved as against a person accused of any offence".
This section being unconditional and absolute, excludes from evidence all statements made to police officers by accused
persons, which are in the nature of confessions. Here again, as this is a limiting section encroaching upon the normal
rules of evidence, it must, in our opinion, be construed strictly. In my considered view, the prohibition contained in
Page 9
 
section 25 is only in respect of proving confessions and that too against persons accused of any offence. It is true that, in
this case, the appellant was an accused person at the time Exhibit P-10 is sought to be proved and put into evidence. But
if either a statement does not amount to a confession or if portions thereof do not amount to a confession, there is no
objection to receiving them in evidence. Again, if there are portions of the statement which are sought to be used for
and in favour of an accused person, such use of the portions ofthe statement is not excluded
(1959) 1 MLJ (Crl) 1 at 10
by section 25 of the Indian Evidence Act. Applying these principles to the present case, that portion of Exhibit P-10,
which is not in the nature of a confession, can certainly be received in evidence. Again, in respect of those portions of 
the statement which are confessional in character, so long as the use of such portions is made in favour of the accused as
for example where it contains an excuse for committing a crime which if believed may either serve to mitigate the
offence or exculpate the accused then such portions can be received in evidence. Reading Exhibit P-10 carefully, the
only portion that has to be excluded is the last lines thereof, namely.
"Then I gave a slap to Bootla Venkati who went and fell at a distance. Then I took a roof-bolt and beat Venkati who subsequently
died".
The learned counsel for the appellant contends that Exhibit P-10 is inadmissible in evidence under section 27 of the
Indian Evidence Act. He contends, in the first place, it cannot be held that there was recovery of the roof-bolt, because it
was recovered from the house of the appellant, which, on a proper investigation, would have been found by the police
anyhow, and secondly having regard to the decision of the Privy Council in  Kotayya v.  Emperor 1 the only portion of the
statement of an accused person that could be received under section 27 of the Evidence Act as,
"The roof bolt....is in my house"
and the rest should be excluded. Section 27 is a proviso to section 26 of the Evidence Act and they run thus:
"26. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence
of a Magistrate, shall be proved as against such person.
 Explanation: In this section......
27. 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."
It may be seen that section 26 contains an unconditional bar to the use of confessions made by accused persons in
police custody, against them, unless they are made in the immediate presence of a Magistrate; under section 27, only so
much of the confession as relates distinctly to any fact discovered in consequence of such confession may be proved. It
may be seen from the above that unless the statement or confession of an accused person made to a police officer which
is sought to be used against him at the trial falls within the four corners of section 27 , it would be excluded either under
section 25 or section 26 of the Evidence Act or under section 162, Criminal Procedure Code. It is, therefore, necessary
that section 27 has to be carefully studied. The scope of this section was the subject-matter of the decision in  Kotayya v.
 Emperor 1. At page 70 of the report, their Lordships, after quoting sections 25 , 26 and 27, observed as follows:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and
enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into
operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of 
a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered
may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given,
some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence;
Page 10
 
but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate. Normally the section is brought into operation when a person in police custody produces from
some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which
the informant is accused. Mr Megaw, for the Crown, has argued that in such a case the 'fact discovered' is the physical object
produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a
person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the
commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of 
section 27 little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by
persons in police custody. That ban was presumably inspired by the fear of the
(1959) 1 MLJ (Crl) 1 at 11
Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is
required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems
reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will
lose its effect. On normal principles of construction, their Lordships think that the proviso to section 26 , added by section 27,
should not be held to nullify the substance of the section. In their Lordships' view, 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. Information as to past user, or the
past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a
person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives
were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his
knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if 
to the statement the words be added 'with which I stabbed  A',  these words are inadmissible 'since they do not relate to the discover)'
of the knife in the house of the informant'."
As may be seen from the above passage, their Lordships of the Privy Council, while assuming that the extent of 
information admissible must depend on the exact nature of the fact discovered to which such information is required to
relate, came to the conclusion that the fact discovered is not the physical object produced, that if the connection between
the fact discovered and the offence is sought to be linked by the information given by the accused, little substance
would remain in the ban imposed by sections 25 and 26 , on confessions made to the police by persons in police
custody, that section 27 should not be held to nullify these sections and that it is fallacious to treat the fact discovered as
equivalent to the object produced. Having so held, their Lordships began to describe what, in their opinion, is the fact
discovered. In doing so, their Lordships observed that the fact discovered embraces (1) the place from which the object
is produced and (2) the knowledge of the accused as to this and held that the information given by the accused and
which could be received in evidence, must relate distinctly to these facts. Considering the particular words used in that
case by the accused, namely, "I will produce a knife concealed in the roof of my house", their Lordships observed that
these words did not lead to the discovery of a knife as knives were discovered many years ago but that they led to the
discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if subsequently by
other evidence that knife is proved to have been used in the commission of the offence under trial, the facts discovered
are very relevant. Having so observed, they wound up by stating that:
"if to the statement already quoted the words 'with which I stabbed A'  be added, then these words are inadmissible, since they do
not relate to the discovery of the knife in the house of the informant."
This observation pre-supposes that their Lordships have in mind that the discovery of the knife is part of the fact
discovered.
Although their Lordships were dealing with a particular case in the context of the facts before them, still the example
given by them clearly lays down a limitation on the scope of section 27 and on the evidence of the information
furnished by the accused which could be properly admitted as relevant. It is common knowledge that when an accused
makes a statement under section 27 of the Indian Evidence Act which contains the information which leads to the
discovery of facts, the statement or the information furnished by him is invariably linked with his admission either of 
the use by him of the weapon discovered against the victim, if what is discovered is a weapon, or of his participation in
Page 11
 
the crime to which the information and the discovery relate. Taking the very sentence which their Lordships of the Privy
Council considered in the above quoted case, namely, "I will produce the knife with which I stabbed  A  and which had
been concealed by me in the roof of my house", if we eliminate the words "with which I stabbed  A" by cutting it out of 
the sentence, what remains is on the face of it irrelevant, because the balance of the sentence that is left does not purport
to relate to the offence in question. Before any piece of evidence can be accepted as a relevant fact, it must be relevant
 proprio vigore  and at the time the statement was received in evidence, it must itself be relevant under
(1959) 1 MLJ (Crl) 1 at 12
one or other of the sections of the Indian Evidence Act which occur in the Chapter 'of relevant facts'. Further, if in every
case the incriminating part of the information is to be eliminated because it would be a confession and as such the
reception thereof would nullify section 26 , then it is difficult to envisage or imagine a case where the information
would amount to a confession, for section 27 in so many words contemplates that the information given is treated as
relevant thereunder even when it amounts to a confession, by the use of the words "whether it amounts to a confession
or not". Reading sections 26 and 27 together, the conclusion necessarily follows that the information taken as relevant
under section 27 could also amount to a confession and that it could not have been the intention of the Legislature to
exclude the information furnished by the accused which relates distinctly to the fact discovered and which is therefore
relevant under section 27 just because it amounts to a confession. We would, further respectfully point out that the
information contained in the words "with which I stabbed the deceased" or "with which the deceased was stabbed" is
information directly relating to the fact discovered, namely, that the knife with which, according to the accused, the
deceased was stabbed is hidden in a place which is known to the accused as having been placed there by him. If the
information discovers the place from which the object is produced and also the knowledge that that place was known to
the accused, of course it also discovers the knowledge of the accused that that weapon was the weapon concerned in the
crime. If the information given is to be correlated to the facts discovered, then that connection is equally established in
the case of discovery of the fact that the weapon produced was to the knowledge of the accused the weapon used in the
commission of the crime. I find it extremely difficult to exclude that part of the information which directly leads to the
discovery of this material fact just because it amounts to a confession, when the section itself contemplates the reception
of information even when it amounts to a confession.
We are no doubt bound by the ruling of their Lordships of the Privy Council and we respectfully follow it, but I have
registered my doubts in this case, as I feel strongly that the decision in  Kotayya v.  Emperor 1 requires to be reconsidered
in the light of what I have stated above and the other legal implications.
We have thus two versions of the incidents appearing from the prosecution evidence itself, one in support of the
prosecution case put forward at the trial and the other put forward by the appellant as deposed to by some of the
prosecution witnesses, the prosecution version being that the deceased, Venkati and the appellant got drunk, that the
appellant began to beat his mother, Rajamma, by fisting her on the chest a number of times which ultimately resulted in
her death, that, as the appellant was fisting and beating his mother, Bootla Venkati the deceased tried to intercede at
which the appellant got enraged and slapped him in the face and that on the deceased falling down, the appellant hit him
with a roof-bolt on the head and other parts of the body causing very serious injuries that were noticed on his body and
which ultimately resulted in his death. It is also the prosecution case that having done these dastardly deeds, the
appellant proceeded to the house of Venkati and pretending not to know anything that had happened enquired
Veeramma whether her husband, Venkati, was there and then informed her that Venkati was lying unconscious and
dead-drunk at his (appellant's) place and that he should be taken away from there. After this, the appellant proceeded to
the house of his relatives, informed them to come to his rescue which they did. When they arrived at the house of the
appellant, they noticed the dead body of Bejjanki Rajamma and also Bootla Venkati, half naked, lying near the logs,
senseless. Thereafter they carried the deceased, Venkati, to the cattle-shed and was dressed with a drawer brought from
the appellant's house and he was lying there groaning and nobody came to his rescue but was allowed to suffer a slow
death in spite of the fact that several persons had gathered at the house of the appellant before Venkati actually expired
on the morning of 27th June, 1957. The version of the prosecution evidence in so far as the death of Rajamma was
concerned, was not accepted by the
(1959) 1 MLJ (Crl) 1 at 13
Page 12
 
learned Sessions Judge and he recorded a finding of acquittal on the charge of murder in respect of Rajamma. In other
words, the learned Sessions Judge did not accept the theory that it was the appellant who hit the deceased, Rajamma,
and caused her death but accepted the evidence of the prosecution in respect of the version relating to the beating and
the causing of the death of Venkati.
The appellant's version which appears at the earliest instance is deposed to by P. W. 19 as follows:
"I asked him why these dead bodies are here and there. He said by the time he returned to his house Mande Rajam was in his house
and that the accused had asked M. Rajam why these dead bodies were there and what had happened and that Mande Rajam had told
him that M. Rajam was sleeping in a room and that Bootla Venkati was beating the old woman and that due to hat noise M. Rajam
woke up, and that Bottla Venkati was trying to commit rape on Rajamma and that Mande Rajam went and beat Venkati. The
accused said that then he beat Mande Rajam giving him 4 or 5 blows. When accused was narrating this, Mande Rajam was not
present. I asked the accused where M. Rajam had gone. Accused said, M. Rajam was there but had absconded somewhere".
(His Lordship then considered the evidence of each of the witnesses).
In considering the guilt or innocence of an accused person, one has necessarily to judge the issue on the prosecution
evidence alone, of course taking into account such admissions as the accused might voluntarily have made and which in
law are admissible could be taken as such admissions and the defence evidence if any produced by the accused. To our
minds, the prosecution version as well as the version favourable to the appellant appearing from the prosecution
evidence as summarised above, are both capable of being regarded as possible on the materials placed before us.
Obviously, that version of the two which is more favourable to the appellant must be accepted by us, in the absence of 
clinching proof that the version put forward by the prosecution as their case is the only correct version. We would,
accordingly, resolve this doubt and possibility in favour of the appellant and proceed with the consideration of the case
on the footing that the version appearing from the prosecution evidence which is more favourable to the appellant is the
acceptable one. This will lead us to the following conclusions:
(1) That the appellant did cause the death of Bootla Venkati with a roof-bolt.
(2) That the injuries inflicted by the appellant are fatal and that be must have intended the death of the victim
in causing these injuries.
(3) That, in any event, he must necessarily have intended to cause such bodily injury to Bootla Venkati as is
sufficient in the ordinary course of nature to cause death.
In either view of the matter, the offence committed by the appellant falls within the scope of section 300, Indian Penal
Code.
But the question is, could the appellant be said to have acted under circumstances which would bring his act of causing
death within one or other of the   Exceptions   to section 300, Indian Penal Code. If the story that when the appellant
returned from the house of Bootla Venkati he was informed that Bootla Venkati had tried to rape Rajamma, the
appellant's mother, and that the mother was beaten to death and the appellant found the dead body of his mother lying
naked and the appellant in the grave and sudden provocation which must have resulted from this discovery, hit and beat
the deceased, Bootla Venkati, as a result of which he died, is accepted and we have no doubt in our minds that the
appellant got this information suddenly and this information, in the nature of things, was highly provocative to any
person, particularly when a friend of the appellant whom he had been entertaining in his house had proved so ungrateful
as to attempt to rape his mother who was aged 65 years and also killed her in the process of satisfying his lust, even if it
was under the influence of drink, we will have no difficulty in holding that the act of the appellant falls within
 Exception I  to section 300 , Indian Penal Code and accordingly we find him guilty of culpable homicide not amounting
to murder punishable under section 304 (Part I), Indian Penal Code.
(1959) 1 MLJ (Crl) 1 at 14
We accordingly set aside the conviction of the appellant on the charge under section 302 , Indian Penal Code, as well as
Page 13
 
the sentence of imprisonment for life passed against him by the learned Sessions Judge and convict him of the offence
of culpable homicide not amounting to murder, punishable under section 304 (Part I), Indian Penal Code, and sentence
him to rigorous imprisonment for seven years.
 A.S.R. ----- Appeal partly allowed.
1 (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.).
1 (1937) 2 MLJ. 60I.L.R. (1937) Mad. 695.
2  Kotayya v. Emperor Kotayya v. Emperor  (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.)
3   Ramakishan Mithanlal Sharma v. State of Bombay Ramakishan Mithanlal Sharma v. State of Bombay  (1955) S.C.J. 129: (1955) 1 MLJ.
(S.C.) 66: A.I.R. 1955 S.C. 104.
1 (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 P.C.
2 A.I.R. 1957 S.C. 211.
3 (1937) 2 MLJ. 60I.L.R. (1937) Mad. 695.
1  Kotayya v. Emperor Kotayya v. Emperor  (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 at 70 (P.C.)
1 (1947) 1 MLJ. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.).
Madras Law Journal - Criminal (Case Law)/1959/Volume 1/Bejjanki Rajam, In re. -- [1959] 1 MLJ 1
(1959) 1 M.L.J (Crl) 1
Bejjanki Rajam, In re.
IN THE HIGH COURT OF JUDICATURE OF ANDHRA AT GUNTU...
Mr. Justice Jaganmohan Reddy and Mr. Justice Sanjeeva Row Nayudu.
Crl. Appeal No. 381 of 1957.
30th November, 1999.
Bejjanki Rajam, In re. In Re
Criminal Procedure Code (V of 1898), section 162 -- Scope of -- Statement made by an accused person to a police
 officer during investigation of a different offence -- Whether hit by section 162 -- Admissibility of such statements.
 Evidence Act (I of 1872), sections 25 , 26 and 27 -- Scope and effect.
On the question whether a statement (Exhibit P-10) purported to be made by an accused person to a police officer is
admissible in evidence having regard to section 162 , Criminal Procedure Code, and sections 25 and 27 of the Evidence
Act,
 Held : Per  Jaganmohan Reddy, J.-  The statement of the accused was made during the investigation of the murder of  V 
and consequently it is hit by section 162, Criminal Procedure Code. Even otherwise, in so far as the confession is
concerned, it is hit by section 25 of the Evidence Act. It is not a case of a complaint to the police in the case of the death
Page 14
 
of   R.   Even if it is considered to be a statement made during the investigation of the accused's mother's death under
section 174 , Criminal Procedure Code, it is one made in the course of investigation and is inadmissible under section
162, Criminal Procedure Code. Exhibit P-10 is inadmissible and must be ruled out.
On the question of statements under section 27 of the Evidence Act, it is well to remember that the view taken by the
Full Bench Judgment of the Madras High Court in (1937) 2 M.L.J. 60: I.L.R. (1937) Mad. 695, was overruled by their
Lordships of the Privy Council in (1947) 1 M.L.J. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67
(P.C.). The Full Bench while admitting that the weight of Indian authority was against them, nevertheless took the view
that any information which served to connect the object discovered with the offence charged was admissible under
section 27. The facts in that case were that the accused charged with an offence of murder made a confession in police
custody and the Court admitted the confession because in the last sentence, there was an offer to produce two bottles, a
rope and a cloth gag which according to the confession were used in or were connected with the commission of the
murder and the objects were in fact produced. The last sentence in the confession relating to the offer to produce the
bottles, etc., it may be stated was easily severable. But the Court however took the view that as the objects produced
were not in themselves of an incriminating nature, their production would be irrelevant unless they were shown to be
connected with the murder, and there was no evidence so as to connect them apart from the confession. It also took the
view that the thing must be connected with the crime in question in order to come within the rule of relevancy aid down
in section 5 of the Evidence Act. With this reasoning, however, their Lordships of the Privy Council did not agree. The
view of the Privy Council has set at rest a great controversy in the Courts of India, and even after our Constitution came
into force, has been approved specifically by several judgments of the Supreme Court of India. The doubts expressed,
based as they are on the meaning to be given to the words, 'whether it amounts to a confession or not' have also been
dispelled by their Lordships of the Supreme Court in the case of 
(1959) 1 MLJ 1 at 2
(1955) S.C.J. 129: (1955) 1 M.L.J. (S.C.) 66: A.I.R. 1955 S.C. 104. Again in A.I.R. 1957 S.C. 211, the admissibility of 
the statement of the accused leading to the discovery of certain clothes were considered in the light of the Privy Council
case. The statement of law in the above cases lucidly and tersely sums up the law on the point. Once a principle is
well-established and is laid down by the highest Court of the land, it is the law and can only be displaced by legislation.
It is too late in the day to disinter the case of I.L.R. (1937) Mad. 695: (1937) 2 M.L.J. 60L.R. 74 I.A. 65: I.L.R. (1948)
Mad. 1: (1947) 1 M.L.J. 219: A.I.R. 1947 P.C. 67(1955) S.c.J. 129: (1955) 1 M.L.J. (S.C.) 66: A.I.R. 1955 S.C. 104;
A.I.R. 1957 S.C. 211, considered.
Per  Sanjeeva Row Nayudu, J.-  Since section 162, Criminal Procedure Code, is a delimiting section encroaching on the
normal rules of evidence, it should be construed strictly and confined to the language and the wording employed in the
section and should not be extended any further. On a careful consideration of the section, where a statement was made
by any person to a police officer in the course of an investigation that was being conducted by him at that time in
respect of any offence which was under investigation at that time, it is inadmissible subject to the proviso. It follows
from this that if a statement was made by any person to a police officer in respect of an offence which was not under
investigation at the time when such statement was made, then that statement is not hit by section 162, Criminal
Procedure Code and cannot be excluded from evidence at an enquiry or trial in respect of that offence which was not
under investigation at that time. Applying this, Exhibit P-10 which purports to be a complaint given by the accused
(appellant) to the police officer, concerning the death of his mother is not hit by section 162, Criminal Procedure Code,
as the offence of the murder of  R,  the mother of the accused (appellant) was not under investigation at that time.
Section 25 of the Evidence Act being unconditional and absolute, excludes from evidence all statements made to police
officers by accused persons, which are in the nature of confessions. As this is a limiting section encroaching upon the
normal rules of evidence, it must be construed strictly. The prohibition contained in section 25 is only in respect of 
proving confessions and that too against persons accused of any offence. If either a statement does not amount to a
confession or if portions thereof do not amount to a confession, there is no objection to receiving them in evidence. If 
there are portions of the statement which are sought to be used for and in favour of an accused person, such use of the
portions of the statement is not excluded by section 25 of the Indian Evidence Act. Applying these principles to the
Page 15
 
facts of the case, that portion of Exhibit P-10 which is not in the nature of a confession, can certainly be received in
evidence. Again, in respect of those portions of the statement which are confessional in character, so long as the use of 
such portions is made in favour of the accused-as for example where it contains an excuse for committing a crime which
if believed may either serve to mitigate the offence or exculpate the accused-then such portions can be received in
evidence.
(A portion only of Exhibit P-10 excluded as inadmissible.)
Reading sections 26 and 27 together, the conclusion necessarily follows that the information taken as relevant under
section 27 could also amount to a confession and that it could not have been the intention of the Legislature to exclude
the information furnished by the accused which relates distinctly to the facts discovered and which is therefore relevant
under section 27 just because it amounts to a confession. If the information discovers the place from which the object is
produced and also the knowledge that that place was known to the accused, of course, it also discovers the knowledge
of the accused that that weapon was the weapon concerned in the crime. If the information given is to be correlated to
the facts discovered, then that connection is equally established in the case of discovery of the fact that the weapon
produced was to the knowledge of the accused the weapon used in the commission of the crime. It is extremely difficult
to exclude that part of the information which directly leads to the discovery of this material fact just because it amounts
to a confession, when the section itself contemplates the reception of information even when it amounts to a confession.
((1947) 1 M.L.J. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.), considered-Correctness
doubted-Requires reconsideration.)
In considering the guilt or innocence of an accused person, one has necessarily to judge the issue on the prosecution
evidence alone, of course, taking into account such admissions as the accused might voluntarily have made and which
in law are admissible could be taken as such admissions and the defence evidence, if any, produced by the accused.
Appeal against the Order of the Court of Session of the Khammam Division in Case No. 9/8 of the Calendar for 1957,
dated 14th October, 1957.
The Additional Public Prosecutor  (Mohammed Mirza), for the State.
The Court delivered the following Judgments:
 Jaganmohan Reddy, J .-I have had the advantage of perusing the judgment of my learned brother. The facts of the case
have been set out fully in the judgment about to be pronounced and it would be unnecessary to reiterate them.
While agreeing with the conviction and sentence proposed to be passed against the accused, there are, however, two
matters to which I wish to address myself,  viz.,
(1959) 1 MLJ 1 at 3
(1) to what extent is the statement of the accused in Exhibit P-10 admissible in evidence, and (2) what is the scope of 
section 27 of the Evidence Act. I would not, after the authoritative and weighty pronouncement of the Judicial
Committee in  Pulukuri Kotayya's case1, have ventured to examine the whole matter as if it was  res Integra,  but having
regard to the observations of my learned brother Sanjeeva Row Nayudu expressing doubts on that judgment, I hasten,
with the greatest respect, to say that I am unable to find myself in agreement with him.
On the first question, it may be stated that Exhibit P-4 is the F.I.R. relating to the murder of Vanga Venkati issued on
the information given by his wife, P.W. 16 Veeramma, in Exhibit P-5 on 27th June, 1955, at 7-15 a.m. The
Investigating Officer Deendayal, P.W. 2, who recorded the statement, registered a case against the accused for an
offence under section 302 as Crime No. 29 of 1957 and issued the F.I.R. He thereafter went to the house of the accused
Page 16
 
and there found the dead body of Rajamma also and that the dead body of Venkati was lying in the cattle-shed. He then
says that when he questioned the accused regarding the death of Rajamma, the accused said that his mother was raped
and murdered by Bootla Venkati and on seeing this he grew annoyed and murdered him with a roof-bolt. P.W. 2 states
that he then recorded the accused's statement and sent it to the Sub-Inspector. This is the F.I.R., Exhibit P-4-A. It may
be noticed from Exhibit P-4-A that this statement of the accused was recorded at 8 a.m., and if this is considered with
the evidence of P.W. 2 in cross-examination that he arrested the accused at 7-45 a.m., it becomes clear that the
statement by the accused on the interrogation of the police officer was given after he was arrested. It is thus clear
beyond doubt that the accused did not give a complaint concerning the death of his mother so as to give it the status of a
first information concerning the death of his mother, but in explaining the death of Vanga Venkati he was stating how
his mother was killed and by whom and therefore it cannot be said that the death of the accused's mother was not under
investigation when the accused made the statement Exhibit P-4-A. It is thus seen that as soon as P.W. 2 found the body
of Rajamma and that of Venkati in the cattle-shed, he proceeded to arrest the accused and to question him regarding the
murder of Venkati; The statement of the accused was thus made during the investigation of the murder of Venkati and
consequently it is hit by section 162, Criminal Procedure Code. Even otherwise, in so far as the confession is concerned,
it is hit by section 25 of the Evidence Act. In my view, it is therefore, not a case of a complaint to the police in the case
of the death of Rajamma. Even if it is considered to be a stater lent made during the investigation of the accused's
mother's death under section 174 , Criminal Procedure Code, as indeed P.W. 2 suspected foulplay, it is one made in the
course of investigation and is inadmissible under section 162, Criminal Procedure Code. I am clearly of the view that
Exhibit P-10 is inadmissible and must be ruled out.
Even after it is ruled out, from the statement of P.W. 19 Ambala Rajam as well as the statement of the accused under
section 342 it would appear that by the time the accused returned after informing P.W. 16 about the drunken state of her
husband he found his mother was raped and murdered by Venkati. This is also what is stated in Exhibit P-10 though in
the evidence of P.W. 19 and his statement under section 342 he asserts that Mande Rajam informed him about these
facts after his return and that he confessed to him that it was he, Mande Rajam who on seeing what Venkati did, had
beaten Venkati and killed him. On hearing this, accused had given some four or five blows to Mande Rajam. The case
of the accused therefore was that his mother was raped and killed by Venkati and not by him. The Sessions Judge
considered the evidence against the accused for the murder of his mother insufficient but thought that Bootla Venkati
was so drunk, he could have hardly raped and killed a woman of 65 years of age, particularly the mother of a man who
always obliged him with drink. The question is not whether a person would have attempted to commit rape of an old
woman of 65 years, but whether a person in a drunken state overcame any such aversion and attempted such an act.
That this allegation was put forward at the very commencement of the case is evident also from the fact that the police
1. (1947) 1 M.L.J. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.).
(1959) 1 MLJ 1 at 4
sent the clothes of the deceased Rajamma to the Chemical Examiner for a report as to whether there was any semen or
spermatozoa thereon. The negative report does not reject the theory of an attempt made to rape her and to have killed
her in making that attempt. On the question whether the accused killed Venkati on finding that Venkati had tried to rape
his mother and killed her or had believed that this was so and in that belief was provoked to cause injuries on Venkati
with a roof-bolt as a result of which Venkati died, I agree with my learned brother that the accused is guilty of the
offence under section 304. The injury to the anus of the deceased Venkati is an indication of the intensity of anger
aroused in the accused on the information that his mother was raped. The defence that Venkati was killed by one Mande
Rajam as sought to be corroborated by P.W. 19 is not established. P.W. 19 is an interested witness, as his wife's mother
and the accused's mother are sisters and according to P.W. 14 Mande Rajam was brought up by the accused about ten
years ago but was not with him since then. That apart, Exhibit P-7 relating to the recovery of the roof-bolt on the
information furnished by him corroborates the prosecution evidence that it was used in the commission of the offence.
This bolt was sent to the Chemical Examiner who found human blood on it.
Page 17
 
Now on the question of statements under section 27 it is well to remember that the view taken by the Full Bench
 judgment of the Madras High Court in   Athappa Gounden.  v.  Emperor 1 was overruled by their Lordships of the Privy
Council in  Kotayya v.  Emperor 2. The Full Bench while admitting that the weight of Indian authority was against them,
nevertheless took the view that any information which served to connect the object discovered with the offence charged
was admissible under section 27. The facts in that case were that the accused charged with an offence of murder made a
confession in police custody and the Court admitted the confession because in the last sentence, there was an offer to
produce two bottles, a rope and a cloth gag which according to the confession were used in or were connected with the
commission of the murder and the objects were in fact produced. The last sentence in the confession relating to the offer
to produce the bottles, etc., it may be stated was easily severable. But the Court, however, took the view that as the
objects produced were not in themselves of an incriminating nature, their production would be irrelevant unless they
were shown to be connected with the murder; and there was no evidence so as to connect them apart from the
confession. It also took the view that the thing must be connected with the crime in question in order to come within the
rule of relevancy laid down in section 5 of the Evidence Act. With this reasoning, however, their Lordships of the Privy
Council did not agree, observing at page 71:
"..... The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact, can
afford no justification for reading into section 27 something which is not there, and admitting in evidence a confession barred by
section 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can
seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link 
in the chain of proof, and the other links must be forged in manner allowed by law.
In their Lordships' opinion   Athappa Gounden   v.  Emperor 1 was wrongly decided, and it no doubt influenced the decision now
under appeal."
This view of the Privy Council had set at rest a great controversy in the Courts of India, and even after our Constitution
came into force, has been approved specifically by several judgments of the Supreme Court of India. The doubts
expressed, based as they are on the meaning to be given to the words, 'whether it amounts to a confession or not' have
also been dispelled by their Lordships of the Supreme Court in the case of   Ramakrishan Mithanlal Sharma v.  State of 
 Bombay3 Bhagwati, J., observed at pages 115-116 as follows:
"Section 27 is an exception to the rules enacted in sections 25 and 26 of the Act which provide that no confession made to a police
officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the
custody of a police officer unless it be
1. (1937) 2 M.L.J. 60I.L.R. (1937) Mad. 695.
2. (1947) 1 M.L.J. 219: L.R. 74 I.A. 65: I.L.R. (1948) Mad. 1: A.I.R. 1947 P.C. 67 (P.C.)
3. (1955) S.C.J. 129: (1955) 1 M.L.J. (S.C.) 66: A.I.R. 1955 S.C. 104.
(1959) 1 MLJ 1 at 5
made in the immediate presence of a Magistrate, shall be proved as against such person. Where, however, any fact is discovered in
consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the
information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not.
"The expression 'whether it amounts to a confession or not' has been used in order to emphasise the position that even though it
may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the
accused. The section seems to be based on the view that if a fact is actually discovered in consequence of information given some
guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But
Page 18
 
clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is
required to relate"- Pulukuri Kotayya v.  Emperor 1.
Again in  Pershadi  v.  State of Uttar Pradesh2 the admissibility of the statement of the accused leading to the discovery
of certain clothes was considered in the 1ight of the Privy Council case. Imam, J., stated at pages 214-215 thus
".....On the question of admissibility of the appellant's statement to the police, Agarwala, J., thought it to be admissible and we
think rightly, having regard to the decision of the Privy Council in  Pulukuri Kotayya  v.  Empero