The charges against the petitioner who was the first accused in the lower Court were in the alternative, (1) under sections 457 and 380, Indian Penal Code, that he broke into the house of P.W.1 and committed theft of a bicycle and (2) that he dishonestly possessed M.Os. 2 and 3, a dynamo and a light, which formed part of the bicycle alleged to have been stolen. The conviction itself was with reference to the second of the charges, punishable under section 411, Indian Penal Code. The conviction was confirmed on appeal. Hence this petition for revision.

The bicycle was missed from the house of P.W.1 on 6th December, 1946. That it must have been stolen, can admit of no doubt. The bicycle itself was abandoned. Only the light snd the dynamo were removed. The petitioner was arrested on 27th June, 1947. On that day the Sub-Inspector of Police recorded Exhibit P-3. The case for the prosecution was that the statements made by the petitioner in Exhibit P-3 led to the discovery of M.O. 2 from P.W.4 and the recovery of M.O.3 from accused 2. P.W.4 gave evidence that the petitioner sold M.O.2 to him about four months before he gave evidence in August, 1947.

The substantial question that arises for determination in this case is whether any portion of Exhibit P-3 is admissible at all under section 27 of the Indian Evidence Act. The portion of Exhibit P-3 that was admitted in evidence in this case in the trial Court was:

“I gave the dynamo and the light to Venkataswami (accused 2)....... I got back from Venkataswami the dynamo light.....and the dynamo stolen from my next house and sold them to the proprietor of a soda factory near the Pillayar temple in Anuppapalayam for Rs. 15”.

True, M.O.3, a light, was recovered from the possession of accused 2. But there was no evidence at all independently of Exhibit P-3 to show that accused 1 gave that light to accused 2. It was dishonest possession of the light M.O.3 with which accused 1 was charged and the mere fact proved that it was with accused 2 would not necessarily lead to an inference that accoused 2 obtained it from accused 1 or that accused 1 was ever in possession of it. All that was discovered on the basis of the statement Exhibit P-3 was possession with accused 2 and not original possession with accused 1 and subsequent transfer of that possession from accused 1 to accused 2. So the portion of Exhibit P-3 “I gave the dynamo and the light to Venkataswami” is not admissible in evidence, since the requirements of section 27 of the Indian Evidence Act were not satisfied.

With reference to M.O. 2, the statement admitted in evidence was,

“Therefore I got from Venkataswami the dynamo light taken in Avanashi road and the dynamo stolen from my next house and sold them to the proprietor of a soda factory near the Pillayar temple in Anuppapalayam for Rs. 15.”

Kotayya v. King Emperor1, makes it quite clear that the previous history of M.O. 2 spoken to by accused 1 is not admissible in evidence. That accused 1 got it back from Venkataswami or that earlier in point of time accused 1 stole it from the next house, would clearly come under the ban and would be inadmissible in evidence. Mr. Basi Reddi for the petitioner contends that even the statement that accused 1 sold the dynamo to the proprietor of the soda factory, i.e. P.W. 4, would be inadmissible in evidence. Their Lordships of the Privy Council in commenting upon the admissibility of the statement in Kotayya v. King Emperor1

“I will produce the knife concealed in the roof of my house”, observed that it “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”.

Neither a sale nor a concealment ceases to be a fact capable of proof though concealment like sale was a thing of the past: and so it is a thing