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1 Supreme Court of India Equivalent citations: 1960 AIR 1125 Author: S C. Bench: Das, S.K., Kapur, J.L., Subbarao, K., Hidayatullah, M., Shah, J.C. PETITIONER: STATE OF U. P. Vs. RESPONDENT: DEOMAN UPADHYAYA DATE OF JUDGMENT: 06/05/1960 BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. KAPUR, J.L. SUBBARAO, K. HIDAYATULLAH, M. CITATION: 1960 AIR 1125 CITATOR INFO : RF 1961 SC1808 (13) F 1963 SC 222 (50) E 1963 SC1074 (11) D 1963 SC1113 (11) RF 1966 SC 119 (11,21) R 1972 SC 66 (13) RF 1973 SC1461 (1197) RF 1976 SC1750 (4) RF 1980 SC1382 (51) RF 1980 SC1632 (19) ACT: Criminal Law--Evidence--Statement made to Police officer leading to discovery--statute making statement admissible when made by person in custody and inadmissible when made by person not in custody--whether offends equality before the law--" Persons in custody "--" Person accused of an offence "--Connotation of--circumstantial evidence--indian Evidence Act, 1872 (1 of 1872), s. 27--Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 162(2)--Constitution of India, Art. 14. Indian Kanoon - 1

2 HEADNOTE: The respondent was tried for the murder of one Sukhdei early on the morning of June 19, The evidence against him was entirely circumstantial and consisted of the following facts : (i) on the 18th evening there was an altercation between the respondent and Sukhdei during which he slapped her and threatened that he would smash her face; (ii) on the 18th evening the respondent borrowed a gandasa from one Mahesh ; (iii) before day break on the 19th he was seen going towards and taking a bath in the village tank; (iv) the respondent absconded immediately thereafter; (v) he was arrested on the 20th and on 21st he offered to hand over the gandasa which he said he had thrown in the tank and thereafter he took the gandasa out of the tank, and (vi) the gandasa was found to be stained with human blood. The Sessions judge accepted this evidence, found that the irresistible conclusion was that the respondent had committed the murder and sentenced him to death. On appeal the High Court held that S. 27 of the Indian Evidence Act offended Art. 14 of the Constitution and was void as it created an unjustifiable discrimination between persons in custody whose statement leading to discovery was made admissible and persons not in custody whose statement was not made admissible even if it led to a discovery ; and consequently they held sub-s. (2) of s. 162 of the Code of Criminal Procedure in so far as it related to S. 27 of the Indian Evidence Act also to be void. As a result, the High Court ruled out the statement of the respondent that he had thrown the gandasa in the tank as inadmissible. They further held that the story that the appellant had borrowed the gandasa from Mahesh was unreliable. The rest of the evidence in the view of the High Court was not sufficient to prove the guilt of the respondent and accordingly they acquitted him. Held, (per S. K. Das, J. L. Kapur, Hidayatullah and Shah, JJ., Subba Rao, J., dissenting), that S. 27 of the Indian Evidence Act and sub-s. (2) of s. 162 of the Code of Criminal 15 Procedure did not offend Art. 14 of the Constitution and were not void. Article 14 does not provide that all laws must be uniform and universally applicable; it merely forbids improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who,are similarly circumstanced, and between whom and others not so favoured, no distinction reasonably justifying different treatment exists. Between persons in custody and persons not in custody the legislature has made a real distinction by enacting distinct rules regarding admissibility of statements confessional or otherwise made by them. Indian Kanoon - 2

3 In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced it has to be remembered that the legislature has to deal with practical problems; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been but has not applied. A doctrinaire approach is to be avoided. Persons not in custody making statements to the police leading to discovery of facts were a possible but rare class. A person who approaches a police officer investigating an offence and offers to give information leading to the discovery of an incriminating fact must be deemed to have surrendered himself to the police and to be in custody within the meaning of S. 27 of the Indian Evidence Act. A law which makes provision for cases where the need is most felt cannot be struck down because there are other instances to which it might have been applied. The object of the legislation being both to punish offenders proved to be guilty and to protect persons who may be compelled to make confessional statements, the provisions of S. 27 are reasonable as they make information admissible on the ground that the discovery of a fact pursuant to the statement made by a person in custody is a guarantee of the truth of that statement. Legal Remembrancer v. Lalit Mohan Singh Roy, (1921) I.L.R. 49 Cal. 167 and Santokhi Beldar v. King Emperor, (1933) I.L.R. 12 Pat. 241, referred to. West Coast Hotel Company v. Parrish, (1937) 300 U. S. 379 : 81 L. Ed. 703, Weaver v. Palmer Bros. Co., (1926) 270 U. S. 402: 70 L. Ed. 654 and Miller v. Wilson, (1915) 236 U. S. 373: 59 L. Ed. 628, relied on. The expression " a person accused of any offence " in s. 27 is merely descriptive of the persons against whom evidence is sought to be led in a criminal proceeding. It is not necessary that the person should have been accused of an offence at the time when he made the statement leading to the discovery of a fact. The statement made by the respondent that he will recover 16 the gandasa which he has thrown in the tank is admissible in evidence and may be used against him. This statement together with the other facts proved, even if the fact of the respondent borrowing gandasa from Mahesh Were excluded, established a chain which was consistent only with his guilt and inconsistent with his innocence. Pakala Narayan Swami v. Emperor, (1939) L. R. 66 I.A. 66, applied. Per Subba Rao, J.-Section 27 of the Indian Evidence Act was void as it violated Art. 14 of the Constitution. The classification of accused persons for the purpose of making their confessions admissible into those in custody and those not in custody was not based upon any intelligible differentia nor was it reasonable. It was a pure surmise Indian Kanoon - 3

4 that the legislature may have thought that the confession of an accused in custody leading to a recovery was a substitute for an extra-judicial confession that he might have made if he was not in custody. It was not correct that the number of accused not in custody making statements or confessions leading to a discovery was not appreciable and that they need not be provided for. Till the year 1872 the legislature treated accused in custody and those not in custody in a similar manner but in that year by an accidental omission of the word " or " it made a distinction between them. It was, therefore, not right to speculate and hold that the legislature consciously excluded from the operation of S. 27 accused not in custody on the ground that they were few in number. Besides, the authorities did not justify classification on the basis of numbers or enable the legislature to include the many and exclude the few from the operation of law without there being an intelligible differentia between them. The taking into custody did not amount to the giving of the statutory or implied caution and did not provide any intelligible differentia for the classification. In re Mottai Thevar, A.I.R Mad. 586, Durlav Namasudra v. King Emperor, (1932) I.L.R. 59 Cal. 1040, Deonandan Dusadh v. King Emperor, (1928) I.L.R. 7 Pat. 411, Santokhi Beldar v. King Emperor, (1933) I.L.R. 12 Pat. 241, Bharosa Ramdayal v. Emperor, A.I.R Nag. 86 and jalla v. Emperor, A.I.R Lah. 278, referred to. Sakhawat Ali V. The State of Orissa, [1955] 1 S.C.R. 1004, distinguished. John A. Watson v. State of Maryland, (1910) 218 U. S. 173 : 54 L. Ed. 987, Jeffrey Manufacturing Co. v. Harry 0. Blagg, (1915) 235 U. S. 571: 59 L. Ed. 364, St. Louis, Iron Mountain & Southern Railway Co. v. State of Arkansas, (1916) 240 U. S. 518: 60 L. Ed. 776, Weaver v. Palmer Bros. Co., (1926) 270 U. S. 402: 70 L. Ed. 654 and West Coast Hotel Company v. Parrish, (1937) 300 U. S. 379: 81 L. Ed. 703, considered. 17 Per Hidayatullah, J.-There was always a clear distinction between a person not accused of an offence nor in the custody of a police officer and one who was. Section 27 has been bodily taken from the English law. In both the laws there was greater solicitude for a person who made a statement when the danger in which he stood had not been brought home to him than for one who knew of the danger. In English law, the caution gave him the warning, and in India the fact of his being in custody took the place of the caution. The law thus classified accused persons into two: (i) those who had the danger brought home to them by detention on a charge and (ii) those who were free. The protection given to these two classes was different. The law was concerned with seeing fairplay, and this was achieved by insisting that an unguarded statement was not Indian Kanoon - 4

5 admissible. The need for the caution was there, and this caution was forcefully brought home to an accused when he was in police custody. There was ample protection to the accused in custody as only that portion of his statement was made admissible which resulted in the discovery of a material fact otherwise unknown to the police. Case law discussed. JUDGMENT: CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1 of Appeal from the judgment and order dated September 11, 1959, of the Allahabad High Court in Criminal Appeal No. 325/1959. H. N. Sanyal, Additional Solicitor-General of India, G. C. Mathur and C. P. Lal, for the appellant. H. J. Umrigar, O. P. Rana and D. Goburdhan, for the respondent. C. K. Daphtary, Solicitor-General of India, H. N. Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar and T. M. Sen, for the Intervener (The Attorney-General for India) May 6. The Judgment of S. K. Das, J. L. Kapur and J. C. Shah, JJ., was delivered by Shah, J. K. Subba Rao, J., and M. Hidayatullah, J., delivered separate Judgments. SHAH J.-The Civil and Sessions Judge, Gyanpur, convicted Deoman Upadhyaya-respondent to this appeal-of intentionally causing the death of one Sukhdei in the early hours of June 19, 1958, at village Anandadih, District Varanasi, and sentenced him to death subject to confirmation by the High Court. The order of conviction and sentence was set aside by the High Court of Judicature at Allahabad. Against that order of acquittal, the State of Uttar Pradesh has appealed to this court with a certificate granted by the High Court. Deoman was married to one Dulari. Dulari's parents had died in her infancy and she was brought up by Sukhdei, her cousin. Sukhdei gifted certain agricultural lands inherited by her from her father to Dulari. The lands gifted to Dulari and the lands of Sukhdei were cultivated by Mahabir, uncle of Deoman. Mahabir and Deoman entered into negotiations for the sale of some of these lands situated at village Anandadih, but Sukhdei refused to agree to the proposed sale. According to the case of the prosecution, in the evening of June 18, 1958, there was an altercation between Deoman and Sukhdei. Deoman slapped Sukhdei on her face and threatened that he would smash her face. Early in the morning of June 19, Deoman made a murderous assault with a gandasa (which was borrowed by him from one Mahesh) upon Sukhdei who was sleeping in the courtyard near her house and killed her on the spot and thereafter, he threw the gandasa into the village tank, washed himself and absconded from the village. He was arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by the Serologist, was found to be stained with human blood. Indian Kanoon - 5

6 Deoman was tried for the murder of Sukhdei before the Court of session at Gyanpur. The trial Judge, on a consideration of the evidence led by the prosecution, held the following facts proved:- (a) In the evening of June 18, 1958, there was an altercation between Sukhdei and Deoman over the proposed transfer of lands in village Anandadih and and in the course of the altercation, Deoman slapped Sukhdei and threatened her that he would smash her mouth " (face). (b) -In the evening of June 18, 1958, Deoman borrowed a gandasa (Ex. 1) from one Mahesh. (c) Before daybreak on June 19, 1958, Deoman was seen by a witness for the prosecution hurrying towards the tank and shortly thereafter fie was seen by another witness taking his bath in the tank. (d) Deomap absconded immediately thereafter and was not to be found at Anandadih on June 19, (e) That on June 21, 1958, Deoman, in the presence of the investigating officer and two witnesses, offered to hand over the gandasa which he said he had thrown into a tank, and thereafter he led the officer and the witnesses to the tank at Anandadih and in their presence waded into the tank and fetched the gandasa (Ex. 1) out of the water. This gandasa was found by the Chemical Examiner and Serologist to be stained with human blood. In the view of the Sessions Judge, on the facts found, the ' only irresistible conclusion' was that Deoman had committed the murder of Sukhdei early in the morning of June 19, 1958, at Anandadih. He observed, " The conduct of the accused (Deoman) as appearing from the movements disclosed by him, when taken in conjunction with the recovery at his instance of the gandasa stained with human blood, which gandasa had been borrowed only in the evening preceding the brutal hacking of Sukhdei, leaves no room for doubt that Deoman and no other person was responsible for this calculated and cold-blooded murder". At the hearing' of the reference made by the court of Session for confirmation of sentence and the appeal filed by Deoman before the High Court at Allahabad, it was contended that the evidence that Deoman made a statement before the police and two witnesses on June 21, 1958, that he had thrown the gandasa into the tank and that he would take it out and hand it over, was inadmissible in evidence, because s. 27 of the Indian Evidence Act which rendered such a statement admissible, discriminated between persons in custody and persons not in custody and was therefore void as violative of Art. 14 of the Constitution. The Division Bench hearing the appeal referred the following two questions for opinion of a Full Bench of the court:- 1. Whether s. 27 of the Indian Evidence Act is void because it offends against the provisions of Art. 14 of the Constitution? and 2. Whether sub-s. (2) of s. 162 of the Code of Criminal Procedure in so far as it relates to s. 27 of the Indian Evidence Act is void? The reference was heard by M. C. Desai, B. Mukherjee and A. P. Srivastava, JJ. Mukherjee, J., and Srivastava, J., opined on the first question, that " s. 27 of the Indian Evidence Act creates an Indian Kanoon - 6

7 unjustifiable discrimination between " persons in custody " and " persons out of custody ", and in that it offends against Art. 14 of the Constitution and is unenforceable in its present form ", and on the second question, they held that sub-s. (2) of s. 162 of the Code of Criminal Procedure " in so far as it relates to s. 27 of the Indian Evidence Act is void ". Desai, J., answered the two questions in the negative. The reference for confirmation of the death sentence and the appeal filed by Deoman were then heared by another Division Bench. In the light of the opinion of the Full Bench, the learned Judges excluded from consideration the statement made by Deoman in the presence of the police officer and the witnesses offering to point out the gandasa which he had thrown in the village tank. They held that the story that Deoman had borrowed a gandasa in the evening of June 18, 1958, from Mahesh was unreliable. They accepted the conclusions of the Sessions Judge on points (a), (c) and (d) and also on point (e) in so far as it related to the production by Deoman in the presence of the police officer and search witnesses of the gandasa after wading into the tank, but as in their view, the evidence was insufficient to prove the guilt of Deoman beyond reasonable doubt, they acquitted him of the offence of murder. At the instance of the State of Uttar Pradesh, the High Court granted a certificate that " having regard to the general importance of the question as to the constitutional validity of s. 27 of the Indian Evidence Act", the case was fit for appeal to this court. Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By s. 24, in a criminal proceeding against a person, a confession made by him is in- admissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By s. 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under s. 24 and complete under s. 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, " accused person " in s. 24 and the expression " a person accused of any offence " have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swamy v. Emperor(1), by the Judicial Committee of the Privy Council, " s. 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation ". The adjectival clause " accused of any offence " is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person,at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides " No confession (1) (1939) L.R. 66 I.A. 66. made by any person whilst he is in the custody of a police officer, unless it be made in the immediate prosence of a Magistrate, shall be proved as against a per. son accused of any offence." By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas s. 25 prohibits proof.of a confession made by a Indian Kanoon - 7

8 person to a police officer whether or not at the time of making the confession, he was in custody, s. 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in form of a proviso states " 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." The expression, " accused of any offence " in s. 27, as in s. 25, is also descriptive of the person concerned, i.e., against a person who is accused of an offence, s. 27 renders provable certain statements made by him while be was in the custody of a police officer. Sec- tion 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by s. 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By s. 27, even if a fact is deposed to as discovered in consequence of informa- tion received, only that much of the information is admissible as distinctly relates to the fact discovered. By s. 26, a confession made in the presence of a Magistrate is made provable in its entirety. Section 162 of the Code of Criminal Procedure also enacts a rule of evidence. This section in so far as it is material for purposes of this case, prohibits, but not so as to affect the admissibility of information to the extent permissible under s. 27 of the Evidence Act, use of statements by any person to a police officer in the course of an investigation under Ch. XIV of the Code, in any enquiry or trial in which such person is charged for any offence, under investigation at the time when the statement was made. On an analysis of ss. 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge:- (a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. (b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. (c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence. Indian Kanoon - 8

9 (d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a.police officer may be proved if it is otherwise relevant. (e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence. A confession made by a person not in custody is therefore admissible in evidence against him in a criminal proceeding unless it is procured in the manner described in s. 24, or is made to a police officer. A statement made by a person, if it is not confessional, is provable in all proceedings unless it is made to a police officer in the course of an investigation, and the proceeding in which it is sought to be proved is one for the trial of that person for the offence under investigation when he made that statement. Whereas information given by a person in custody is to the extent to which it distinctly relates to a fact thereby discovered, is made provable, by s. 162 of the Code of Criminal Procedure, such information given by a person not in custody to a police officer in the course of the investigation of an offence is not provable. This dis- tinction may appear to be somewhat paradoxical. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most where those in the custody of the police and persons not in the custody of police did not need the same degree of protection. But by the combined operation of s. 27 of the Evidence Act and s. 162 of the Code of Criminal Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time when he made it, otherwise it is not. Are persons in custody, by this distinction deprived of " equality before the law, or the equal protection of the laws " within the meaning of Art. 14 of the Constitution? By the equal protection of the laws guaranteed by Art. 14 'of the Constitution, it is not predicated that all laws must be uniform and universally applicable; the guarantee merely forbids improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who are similarly circumstanced, and between whom and others not so favoured, no distinction reasonably justifying different treatment exists: it does not give a guarantee of the same or similar treatment to all persons without reference to the relevant differences. The State has a wide discretion in the selection of classes amongst persons, things or transactions for purposes of legislation. Between persons in custody and persons not in custody, distinction has evidently been made by the Evidence Act in some matters and they are differently treated. Persons who were, at the time when the statements sought to be proved were made, in custody have been given in some matters greater protection compared to persons not in custody. Confessional or other statements made by persons not in custody may be admitted in evidence, unless such statements fall within ss. 24 and 25 whereas all confessional statements made by persons in custody except those in the presence of a Magistrate are not provable. This distinction between persons in custody and persons not in custody, in the context of admissibility of statements made by them concerning the offence Indian Kanoon - 9

10 charged cannot be called arbitrary, artificial or evasive: the legislature has made a real distinction between these two classes, and has enacted distinct rules about admissibility of statements confessional or otherwise made by them. There is nothing in the Evidence Act which precludes proof of information given by a person not in custody, which relates to the facts thereby discovered; it is by virtue of the ban imposed by s. 162 of the Code of Criminal Procedure, that a statement made to a police officer in the course of the investigation of an offence under Ch. XIV by a person not in police custody at the time it was made even if it leads to the discovery of a fact is not provable against him at the trial for that offence. But the distinction which it may be remembered does not proceed on the same lines as under the. Evidence Act, arising in the matter of admissibility of such statements made to the police officer in the course of an investigation between persons in custody and persons not in custody, has little practical significance. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the custody " of the police officer within the meaning of s. 27 of the Indian Evidence Act: Legal Remembrancer v. Lalit Mohan 'Singh (1), Santokhi Beldar v. King Emperor (2). Exceptional cases may certainly be ima- gined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer. But in considering whether a statute is unconstitutional on the ground that the law has given equal treatment to all persons similarly circumstanced, it must be remembered that the legislature has to deal with practical problems; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been but is not applied. As has often been said in considering whether there has been a denial of the equal protection of the laws, a doctrinaire approach is to be avoided. A person who has committed an offence, but who is not in (1) (1921) I.L.R. 49 Cal, 167. (2) (1933) I.L.R. 12 Pat custody. normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence. The Parliament enacts laws to deal with practical problems which are likely to arise in the affairs of men. Theoretical possibility of an offender not in custody because the police officer investigating the offence has not been able to get at any evidence against him giving information to the police officer without surrendering himself to the police, which may lead to the discovery of an important fact by the police, cannot be ruled out; but such an occurrence would indeed be rare. Our attention has not been invited to any case in which it was even alleged that information leading to the discovery of a fact which may be used in evidence against a person was given by him to a police officer in the Indian Kanoon

11 course of investigation without such person having surrendered himself Cases like Deonandan Dasadh v. King Emperor (1), Santokhi Beldar v. King Emperor (2), Durlav Namasudra v. Emperor (3), In re Mottai Thevar (4), In re Peria Guruswami (5 ), Bharosa Ramdayal v. Emperor (6) and Jalla v. Emperor (7) and others to which our attention was invited are all cases in which the accused persons who made statements leading to discovery of facts were either in the actual custody of police officers or had surrendered themselves to the police at the time of, or before making the statements attributed to them, and do not illustrate the existence of a real and substantial class of persons not in custody giving information to police officers in the course of investigation leading to discovery of facts which may be used as evidence against those persons. In that premise and considered in the background that persons in custody " and " persons not in custody do not stand on the same footing nor require (1) (1928) I.L.R. 7 Pat (3) (1932) I.L.R. 59 Cal (5) I.L.R Mad. 77. (2) (1933) I.L.R. 12 Pat (4) A.I.R Mad (6) I.L.R Nag (7) A.I.R Lah identical protection, is the mere theoretical possibility of some degree of inequality of the protection of the laws relating to the admissibility of evidence between persons in custody and persons not in custody by itself a ground of striking down a salutary provision of the law of evidence? Article 14 of the Constitution of India is adopted from the last clause of s. 1 of the 14th Amendment of the Constitution of the United States of America, and it may reasonably be assumed that our Constituent Assembly when it enshrined the guarantee of equal protection of the laws in our Constitution, was aware of its content delimited by judicial interpretation in the United States of America. In considering the authorities of the superior courts in the United States, we would not therefore be incorporating principles foreign to our Constitution, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approach to similar problems on account of historical or other reasons differs from ours. In West Coast Hotel Company v. Parrish (1), in dealing with the content of the guarantee of the equal protection of the laws, Hughes, C. J., observed at p. 400:- " This court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature "is free to recognise degree of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest ". If " the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied ". There is no " Indian Kanoon

12 doctrinaire requirement " that the legislation should be couched in all embracing terms ". Holmes, J., in Weaver v. Palmer Bros. Co. (2), in his dissenting judgment observed :- " A classification is not to be pronounced arbitrary (1) (1937) 300 U.S. 379: 81 L. Ed (2) (1926) 270 U.S. 402 : 70 L. Ed because it goes on practical grounds and attacks only those objects that exhibit or foster an evil on a large scale. It is not required to be mathematically precise and to embrace every case that theoretically is capable of doing the same harm. " if the law presumably hits the evil, where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied." Miller v. Wilson(1). McKenna, J., in Health and Milligan Mfg. Co. v. Worst (2), observed: " Classification must have relation to the purpose of the legislature. But logical appropriateness of the inclusion or exclusion of objects or persons is not required. A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion, even though it result in 'illadvised, unequal, and oppressive legislation... Exact wisdom and nice adaption of remedies are not required by the 14th Amendment, nor the crudeness nor the impolicy nor even the injustice of state laws redressed by it." Sections 25 and 26 are manifestly intended to hit at an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. But these sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to give confessional statements. If s. 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of the truth of the statement made by him, and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement, that rule is not to be deemed unconstitutional, because of the possibility of abnormal instances to which the legislature might have, but has not extended the rule. The principle of admitting (1) (1915) 236 U.S. 373; 59 L. Ed (2) (1907) 207 U.S. 338; 52 L. Ed evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. The fact that the principle is restricted to persons in custody will Dot by itself be a ground for holding that there is an attempted hostile discrimination because the rule of admissibility of evidence is not extended to a possible, but an uncommon or abnormal class of cases. Indian Kanoon

13 Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence and on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. As we have already observed, the expression " accused of any offence " is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by s. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. In that view, the High Court was in error in holding that s. 27 of the Indian Evidence Act and s. 162, sub-s. (2), of the Code of Criminal Procedure in so far as ' that section relates to s. 27 of the Indian Evidence Act' are void as offending Art. 14 of the Constitution. The High Court acquitted Deoran on the ground that his statement which led to the discovery of the gandasa is inadmissible. As we differ from the High Court on that question, we must proceed to review the evidence in the light of that statement in so far as it distinctly relates to the fact thereby discovered being admissible. The evidence discloses that Deoman and his uncle, Mahabir, were anxious to dispose of the property of Sukhdei and of Dulari and Sukhdei obstructed such disposal. In the evening of June 18,1958, there was an altercation between Sukhdei and Deoman over the proposed disposal of the property, in the presence of witnesses, Shobhnath and Mahesh, and Deoman slapped Sukhdei and threatened that he would " smash her mouth ". In the morning of June 19, 1958, the dead body of Sukhdei with several incised injuries caused by a gandasa was found lying in her court-yard. Deoman was seen in the village on that day early in the morning hurrying towards the village tank and I taking a bath ', but thereafter he absconded from the village and was not found till sometime in the afternoon of the 20th. In his examination by the court, be has stated that he had left Anandadih early in the morning of June 19, on business and that he was not absconding, but there is no evidence in support of that plea. The evidence discloses that in the presence of witnesses, Shobbnath and Raj Balladur Singh, Deoman waded into the village tank and " fetched the gandasa " which was lying hidden in the mud at the bottom of the tank and that gandasa was found by the Serologist on examination to be stained with human blood. The High Court has agreed with the findings of the Trial Court on this evidence. The evidence that Deoman had in the presence of the witnesses, Shobhnath and Raj Bahadur Singh offered to point out the gandasa which he said he had thrown into the tank was accepted by the Trial Court and the High Court has not disagreed with that view of the Trial Court, though it differed from the Trial Court as to its admissibility. The evidence relating to the borrowing of the gandasa from witness, Mahesh, in the evening of June 18, 1958, by Deoman has not been accepted by the High Court and according to the settled practice of this Court, that evidence may be discarded. It was urged that Deoman would not have murdered Sukhdei, because by murdering her, he stood to gain nothing as the properties which belonged to Sukhdei could not devolve upon his wife Dulari in the normal course of inheritance. But the quarrels between Deoman and Sukhdei arose not because the former was claiming that Dulari was heir presumptive to Sukhdei's estate, but because Sukhdei resisted attempts on Deoman's part to dispose of the property belonging to her and to Dulari. The evidence that Deoman slapped Sukhdei and threatened her that he would " smash her face " coupled with the circumstances that on the morning of the murder of Sukhdei, Deoman absconded from the village after washing himself in the village tank and after his arrest made a statement in the presence of witnesses that he had thrown the gandasa in the village tank and produced the same, establishes a strong chain of Indian Kanoon

14 circumstances leading to the irresistible inference that Deoman killed Sukhdei early in the morning of June 19, The learned trial Judge held on the evidence that Deoman was proved to be the offender. That conclusion is, in our view, not weakened because the evidence relating to the borrowing of the gandasa from witness Mahesh in the evening of June 18, 1958, may not be used against him. The High, Court was of the view that the mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank, and an inference could legitimately be raised that somebody else had placed it in the tank, or that Deoman had seen someone placing that gandasa in the tank or that someone had told him about the gandasa lying in the tank. But for reasons already set out the information given by Deoman is provable in so far as it distinctly relates to the fact thereby discovered: and his statement that he had thrown the gandasa in the tank is information which distinctly relates to the discovery of the gandasa. Discovery from its place of hiding, at the instance of Deoman of the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquires significance, and destroys the theories suggested by the High Court. The quarrel between Deoman and Sukhdei and the threat uttered by him that he would smash Sukhdei's " mouth " (face) and his absconding immediately after the death of Sukhdei by violence, lend very strong support to the case for the prosecution. The evidence, it is true, is purely circumstantial but the facts proved establish a chain which is consistent only with his guilt and not with his innocence. In our opinion therefore the Sessions Judge was right in his view that Deoman had caused the death of Sukhdei by striking her with the gandasa produced before the court. On the evidence of the medical officer who examined the dead body of Sukhdei, there can be no doubt that the offence committed by accused Deoman is one of murder. The Trial Judge convicted the accused of the offence of murder and in our view, he was right in so doing. Counsel for Deoman has contended that in any event, the sentence of death should not be imposed upon his client. But the offence appears to have been brutal, conceived and executed with deliberation and not in a moment of passion, upon a defenseless old woman who was the benefactress of his wife. The assault with a dangerous weapon was made only because the unfortunate victim did not agree to the sale of property belonging to her and to her foster child. Having carefully considered the circumstances in which the offence is proved to have been committed, we do not think that any case is made out for not restoring the order imposing the death sentence. We accordingly set aside the order passed by the High Court and restore the order passed by the Court of Session. It may be observed that the sentence of death cannot be executed unless it is confirmed by the High Court. The High Court has not confirmed the sentence, but in exercise of our powers under Art. 136 of the Constitution, we may pass the same order of confirmation of sentence as the High Court is, by the Code of Criminal Procedure, competent to pass. 'We accordingly confirm the sentence of death. SUBBA RAO J.-I have had the advantage of, perusing the judgment of my learned brother, Shah, J. I regret my inability to agree with his reasoning or conclusion in respect of the application of Art. 14 of the Constitution to the facts of the case. The facts have been fully stated in the judgment of my learned brother and they need not be restated here. Article 14 of the Constitution reads: Indian Kanoon

15 " The State shall not deny to any person equality before the law or equal protection of the laws within the territories of India." Das, C. J., in Basheshar Nath v. The Commissioner of Income- tax(1) explains the scope of the equality clause in the following terms: "The underlying object of this Article is undoubtedly to secure to all persons, citizens or non-citizens, the equality of status and of opportunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall " deny to any person within its jurisdiction the equal protection of the laws ". There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States... The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy." This subject has been so frequently and recently before this Court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land ; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimi- nation can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based (1) [1959] Supp. (1) S.C.R upon differences pertinent to the subject in respect of and the purpose for which it is made. Das, C. J., in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1) culled out the rules of construction of the equality clause in the context of the principle of classification from the various decisions of this Court and those of the Supreme Court of the United States of America and restated the settled law in the form of the following propositions at pp : " (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; Indian Kanoon

16 (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always (1) [1959] S.C.R holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation:" In view of this clear statement of law, it would be unnecessary to cover the ground over again except to add the following caution administered by Brewer, J., in Gulf, Colorada and Santa Fe Rly. Co. v. Ellis (1): " While good faith and a knowledge of existing conditions on the part of a Legislature is to be presumed, yet to carry that presumption to the extent of always holding that there must 'be some undisclosed and unknown reason for subjecting certain individuals or Corporations to hostile and discriminating Legislation is to make the protecting clauses of the 14th Amendment a mere rope of sand, in no manner restraining state action." It will be seen from the said rules that a weightage is given to the State as against an individual and a heavy burden is thrown on the latter to establish his fundamental right. If the caution administered by Brewer, J., in Gulf, Colorada and Santa Fe Rly. Co. v. Ellis (1) and restated by Das, C. J., in Shri Ram Krishna Dalmia's case (2) were to be ignored, the burden upon a citizen would be an impossible one, the rules intended to elucidate the doctrine of equality would tend to exhaust the right itself, and, in the words of Brewer, J., the said concept becomes " a mere rope of sand, in no manner restraining state action ". While the Court may be justified to assume certain facts to sustain a reasonable classification, it is not permissible to rest its decision on some undisclosed and unknown reasons; in that event, a Court would not be enforcing a fundamental right but would be finding out some excuse to support the infringement of that right. It will be convenient at the outset to refer to the relevant sections. Under s. 25 of the Evidence Act, no confession made to a police-officer shall be proved as against a person accused of an offence. Section 26 says that no confession made by any person while he is in the custody of a police- officer, unless it is made in the immediate presence of a 'Magistrate, shall be (1) [1897] 165 U.S. 150; 41 L. Ed (2) [1959] S.C.R Indian Kanoon