Section 27 of the Indian Evidence Act, 1872 (“IEA”), creates an exception to the admissibility of confession made by the accused to a police officer while in custody. The section provides as to how much information received from an accused may be proved. It provides 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. Whether the “fact discovered” includes only physical facts and objects, which can be perceived by the senses, or also includes a mental condition or a mental fact, is a question which has confounded the courts for a long time.


The meaning of “fact” is contained in section 3 of IEA and includes anything, state of things, or relation of things, capable of being perceived by the senses; and includes any mental condition of which any person is conscious. There is no reason to give a restrictive meaning to the word “fact” under section 27 IEA, so as to exclude mental condition, when there is no such stipulation contained in the statute. However, the courts have at times taken a different view and included only the discovery of physical objects as admissible under section 27 IEA.

The rationale behind the partial lifting of the ban contained under section 25 and 26 IEA against the confession made to the police officer is that the fact discovered affords the guarantee of truth of that part. The admissibility of such part of confession is based on the doctrine of confirmation by subsequent events. This doctrine is founded on the principle that if any fact is discovered on the strength of any information obtained from an accused, such discovery is a guarantee that the information supplied by the accused is true. In other words, if an accused in his confession discloses a fact, which is not in the knowledge of police earlier or from a prior source, but subsequently gets confirmed, so much of such information as relates distinctly to the fact thereby discovered, may be proved against the accused and can therefore be safely allowed to be admitted in evidence as an incriminating fact against the accused. The information given by the accused, which is not known to the police earlier, exhibits the knowledge or mental awareness of the accused, as to its existence.


With respect to section 27 IEA, the ratio which has become locus classicus and has well stood the test of time for over eight decades now is laid down in the celebrated decision by the Privy Council in Pulukuri Kotayya vs Emperor[1], wherein it has been held that it is fallacious to treat the “fact discovered” within the section on equivalent to the object produced; the “fact discovered” embraces the place from the which object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. It was explained that 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.


The question as to whether a “mental fact” within the knowledge of an accused is admissible under section 27 IEA was dealt with by the Supreme Court in the case Charandas Swami v. State of Gujarat[2]. It was held that a fact discovered within the meaning of section 27 need not be self-probatory and the word “fact” as contemplated by section 27 is not limited to “actual physical material object” and that the discovery of fact arises by reason of the fact that information given by the accused exhibits knowledge or mental awareness of the informant as to its existence. The said case dealt with disclosure of a mental fact by accused regarding identity of the deceased named Gadadharanandji, which identity got confirmed only after the results of medical examination became available to the investigating agency. In this case, an unknown dead body was recovered in burnt condition on 04.05.1998 from a ditch at Barothi. After his arrest on 29.03.1999, the accused made a disclosure on 02.04.1999 about the location where he had disposed of the dead body of Gadadharanandji. It was noted that till the disclosure was made, in the records of Rajasthan Police, the dead body was noted as that of an unknown person. It was held that if accused had not disclosed to the investigating officer about the location where the dead body was dumped by him, which information was personally known to him and at best to another accused and none else, then the investigation would not have made any headway. It was observed that when the accused led the police party to the spot where the dead body was dumped by him, that location matched with the location from where the dead body of an unknown person was recovered earlier on 04.05.1998. It was held that the fact that the dead body was already recovered from the same place on 04.05.1998 and so noted in the public record in the state of Rajasthan did not undermine the admissibility of the disclosure made by the accused to the investigating officer about the location where the dead body of Gadadharanandji was dumped by him, which information was exclusively within the personal knowledge of accused. The fact that the dead body recovered on 04.05.1998 was of Gadadharanandji, was unraveled and discovered only after the results of its medical examination became available to the investigating agency. Till then, it was considered to be of an unknown person. It was further held that only a person who was present at the time of commission of the offence, could have known about the location of the offence and accused undoubtedly had the exclusive knowledge about the place where the crime was committed. In the said case, since the body of the deceased already stood recovered prior to the disclosure made by accused, there was as such, no discovery or recovery of a physical object or material fact. The recovery was of a mental fact to the effect that the body recovered earlier was of Gadadharanandji i.e. the deceased and about the place where the body was dumped. The Apex Court held that the courts below had rightly placed reliance on the “fact discovered” by the investigating officer on the basis of disclosure made by the accused, which was held admissible under section 27 IEA. In conclusion, it was held that disclosure made by accused about the location as to where the dead body of Gadadharanandji was dumped by him in a village in Barothi led to discovery of fact, which was confirmed after subsequent medical examination that the dead body so recovered was of none other than of Gadadharanandji, was admissible in evidence. The court thus, in the said case admitted in evidence a mental fact discovered from the information given by the accused even though the body of the deceased had already been recovered earlier in point of time.


In the case of State (NCT of Delhi) vs Navjot Sandhu[3], the Supreme Court adverted to previous decisions and restated the legal position on the point in issue with regard to fact discovered. Reference was made to the decision in Pulukuri Kotayya vs King Emperor (supra), wherein the Privy Council observed that 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. It was held that emphasis on the word “normally” was made because the illustration given by the learned Judge were not exhaustive.

 

In the case of Mohd. Inayatullah v. State of Maharashtra[4], the significance of the section starting with the expression “Provided that” and the phrase “whether it amounts to confession or not” were discussed in some detail; the conditions necessary for bringing the section into operation were explained- the first condition being discovery of a fact; second being that discovery of such fact must be deposed to; third being that at the time of receipt of such information, the accused must be police custody; fourth, that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The meaning of the word 'distinctly’ was also discussed in the context of the section. After discussing various facets, it was held that the “fact discovered” is not restricted to physical or material fact which can be perceived by the senses, but it also includes a mental fact. Referring to the decision of Pulukuri Kottya’s (supra), it was held that the expression “fact discovered” includes not only the physical object, but also the place from which it is produced and the knowledge of the accused as to this.

 

State of Maharashtra v. Damu[5] was a case where subsequent to the recovery of dead body of deceased from a canal, a statement was made by the accused before investigating officer that the dead body of deceased was carried by him and co-accused on latter’s motorcycle and thrown into canal. As the dead body already stood recovered prior to the disclosure, this information did not lead to recovery of an object i.e. the dead body. However, a broken glass piece was recovered by investigating officer from the spot, which was found to be part of missing tail lamp of the motorcycle of the accused. On that basis, it was held that the investigating officer cannot be said to have discovered the fact that the accused carried the dead body on that particular motorcycle upto the spot. In this case, the discovery was not material object, but of a mental fact that the accused had carried dead body on the motorcycle. It was explained that the basic idea embedded in section 27 IEA is the doctrine of confirmation by subsequent events.

 

Accused Jitender in the case titled State v. Jitender[6], was sentenced to death by the trial court for causing the death of his father. The accused had killed his father as mark of human sacrifice and severed the head from the body and cut off various parts of the body. The factum of chopping of organs being post mortem and the cause of death being asphyxia was discovered pursuant to the disclosure given by the accused, which information was subsequently confirmed when the post mortem was done. The prosecution argued it was the accused who disclosed on 14.03.2008 that the time of killing/ death of his father was the morning of 13.03.2008 and that the death had taken place by pressing the throat of his father and decapitation and chopping of the organs was done after the death i.e. were postmortem in nature. Both these facts were subsequently confirmed through the postmortem, which was conducted on 15.03.2008. It was held that the disclosure statement of the accused recorded on 14.03.2008 revealed that the he had killed his father by strangulation (and not by decapitation). The said facts, having been discovered pursuant to the disclosure by the accused, being mental condition of which the accused was conscious, were held to be admissible by virtue of section 27 IEA.

 

In Dost Mohammed v. State[7], the knowledge of the mental condition that the deceased had been killed by a gunshot injury was derived from the disclosure statement of the accused and was held to be admissible and taken as an incriminating circumstance, as it was confirmed by a subsequent event i.e. the doctor who conducted the post mortem when he recovered the bullet from the chest cavity of the deceased.

 

Pandurang Kalu Patil vs State of Maharashtra[8], was a case where while adjudicating on a decision rendered by a Division Bench of High Court of Bombay, which ventured to disagree with the ratio laid down in Pulukuri Kotayya (supra), it was explained that the “fact discovered” is not equivalent to “object produced” and that the information regarding concealment of the article of the crime does not lead to the discovery of the fact that the article was concealed that indicated place to the knowledge of police.

 

In Mehboob Ali v. State of Rajasthan[9], there was discovery of fact but not of any object, and the same was held to be admissible under section 27 IEA. From the statement of accused Mehboob Ali and Mohd. Firoz, co-accused was nabbed on the basis of identification made by the accused. That he was dealing with fake currency came to the knowledge of the police through these accused and there was subsequent recovery of forged currency notes from the co-accused. It was held that these facts were not in the knowledge of the police, hence the statement of the accused person leading to discovery of discovery of fact was clearly admissible as per the provision contained in section 27 of IEA. In this case too, there was no recovery of physical object as such.

 

Thus, from the conspectus of the decisions rendered by the Courts it can be concluded that the fact discovered as contemplated under section 27 IEA, includes not only the physical or corporeal object which can be perceived by the senses, but also includes the mental condition of which a person is conscious, which may lead to a discovery of a fact which was not in the knowledge of the investigating agency prior to its disclosure or through some other source. The courts should, thus, not apply restrictive meaning to the “fact discovered” under section 27 IEA and look for even mental conditions of which a person is conscious that can be discovered from the disclosure statement given by the accused while in custody.


[1] AIR 1947 PC 67

[2] (2017) 7 SCC 177

[3] (2005) 11 SCC 600

[4] (1976) 1 SCC 828

[5] (2006) 6 SCC 269

[6] 2013 (III) AD (Delhi) 369

[7] 2010 (2) JCC 1034

[8] (2012) 2 SCC 490

[9]2015 (12) SCALE 67