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TMI Blog1975 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... itting theft of three drums containing phosphorous pentaoxide, valued at Rs. 300/-, from the premises of the Bombay Port Trust on 1-8-1968 at 8.40 A. M. 2. The First Information Report of the theft lodged with the police by Murari Bhikaji Bidya (PW 1) Shed Superintendent of Haji Bunder, at 9.15, was as follows: Today in the morning at about 8 a. m., I reported for duty at Haji Bunder. At about 8.40 A. M. or so, the Canteen boy named Shri Babu Durga came to me and informed me that one M/Car had come inside Haji Bunder and removed 3 small drums which were lying between 'A' Shed and Canteen in an open place along with several drums. I immediately asked Shri Joshi the gate-keeper who was present in my office at that particular time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... markings, 'ACC I Phosphorous Pentaoxide'. Thereafter, the drums were identified by PW 1 as the same which had been stolen. 5. Among others, the prosecution examined M. Bhikaji (PW 1), the informant, Vishnu Sakharam (PW 2), the Gate-keeper, Govindji (PW 3) the Clearing Agent and Rasal Mohd. (PW 6), a panch witness of the discovery. The driver of the car BML 6649 was also put in the witness-box as PW 5. He turned hostile and the prosecution cross-examined him to impeach his credit. 6. The plea of the appellant was one of plain denial of the prosecution case. 7. The courts below have concurrency found these facts: 1. That three drums had been stolen from the shed of the Bombay Port Trust on 1-8-1968 at 8.40 A.M. 2. That the dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reminded of its requirements. The Section says: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. 11. The expression "Provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remotely related to the fact discovered. 12. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact see Sukhan v. Crown AIR 1929 Lah 344; Gangu Chandra v. Emperor AIR 1932 Bom 286. Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this see Palukuri Kotayya v. Emperor 74 Ind App 65 : AIR 1947 PC 67 : Udai Bhan v. State of Uttar Pradesh AIR 1962 SC 1118. 13. Before proceeding further, it is necessary to be clear about the precise sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musafirkhana. Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Thus processed, in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate and direct cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be explained on any other hypothesis save that of the guilt of the accused. Such is not the case here.
17. The facts proved by the prosecution, particularly the admissible portion of the statement made by file accused, could give rise to two alternative hypotheses, equally possible, namely: (i) that it was the accused who had himself deposited the stolen drums in the Musafirkhana, or (ii) the accused only knew that the drums were lying at that place. The second hypothesis was wholly compatible with his innocence. In the ultimate analysis, therefore, the appellant was entitled to the benefit of doubt.
18. Accordingly, we allow his appeal, set aside his conviction and acquit him of the charge leveled against him. X X X X Extracts X X X X X X X X Extracts X X X X
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