Deoman Upadhyaya was married to one Dulari, who was brought up by her cousin
Sukhdei. Sukhdei had gifted some agricultural land to Dulari. Mahabir, uncle of
Deoman and the cultivator of the gifted lands and Sukhdie's lands. Deoman and
Mahabir entered into talks for the sale of some of these properties situated at
village Anandadih to which Sukhdei refused to agree.
AIR 1960 Supreme Court 1125
: S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J.
C. Shah , JJ (Constitution Bench)
Date of the judgment of the Supreme Court: May 06, 1960
On the evening of June 18,
1958, an altercation between Deoman and Sukhdei broke out in which Deoman
slapped Sukhdei on her face and threatened to smash it in the presence of Shobh
Nath and Mahesh.
On the evening of June 18, 1958, Deoman borrowed a gandasa from one Mahesh. On
June 19, 1958, in the early morning, Deoman using the gandasa murdered Sukhdei,
who was sleeping in the courtyard near her house. At about dawn on June 19,
1958, Deoman was seen by Khusai hurrying towards a tank and shortly was seen by
Maha Dihal (taking bath in that tank). Deoman absconded immediately after that
and was not found in the village on that day.
On June 21, 1958, Deoman in the
presence of the investigating officer, Shobh Nath, and Raj Bahadur Singh stated
to hand over the gandasa and led the investigating officer and same witness to
the tank and in their presence fetched the gandasa out of the tank, that was
found by the Chemical Examiner and Serologist to be stained in human blood.
case then moved to the trial court where Deoman was convicted and sentenced to
death. Deoman moved to the high court through appeal where he was acquitted on
procedural grounds. The state of UP appealed to the supreme court where the
trial further proceeded.
- Does S. 27 of the Indian Evidence Act violate the terms of Article 14 of
the Constitution, rendering it invalid?
- Is Section 162(2) of the Code of Criminal Procedure invalid in so far as
it relates to Section 27 of the Indian Evidence Act?
The Supreme Court set aside the decision of the High Court and declared Section
27 of the Indian Evidence Act and sub-sec. (2) of S. 162 of the code of Criminal
Procedure in so far as that section relates to S.27 of the Evidence Act, are
intra vires and are not contrary to Article 14 of the Constitution. Holding the
Session court's decision and in the exercise of its power under Article 136 of
the Constitution, The Supreme Court confirmed the sentence of death.
The High Court agreed to the facts of the case but stated that the statement
which led to the discovery of gandasa was inadmissible. The Supreme Court held
that even though the evidence relating to confessional or other statements made
by a person in the custody of a police officer is inadmissible if a part or
whole statement led to the discovery of a fact, it may be presumed as untainted
and is therefore declared provable. There is intelligible differentia between
the accused in custody and the accused not in custody.
The legislation has two objects:
- To make important evidence available to the Court in the way of confession
to reach the truth; and
- To protect the accused against coercive actions that may be adopted by
The object sought to be achieved by the difference between the two categories
- Extrajudicial confessions are not admissible as evidence in the case of an
accused who is in custody, but they are admissible in the case of an accused
who is not in custody.
- The number of accused who confess or provide information to the police
while they are holding them would be negligible in comparison to the number
of accused who do so when they are in their custody.
- An accused who is not in jail who confesses to a police officer does not
receive a warning before the confession is recorded, whereas an accused who
is in custody receives a factum of custody and is kept on guard; and
- In the case of an accused person who is in custody, protection through
the imposition of a requirement for the admissibility of confessions is
required; however, an accused person who is not in jail does not require
The classification formed by the legislature is appropriate and exempts the
current case from the application of Article 14 of the Constitution as a result
of these disparities between the two categories, the argument continues.
Justice Subba Rao S. 27 of the Indian Evidence Act is void as it violated
Article 14 of the Constitution. According to him, there was no intelligible
differentia in the caution needed to be implied by the accused being taken into
custody. A classification is made between the accused not in custody making a
statement and the accused in custody making a statement in which the former is
admissible while the latter is not.
The point raised is questioning this
discrimination between these two categories of accused that is based on an
extremely arbitrary distinction. There was no justifiable reason why a
confession given to a police officer by an accused person who is in custody
should be accepted but not one given by an accused person who is not in custody.
The requirement placed in the case of the former may, to some extent, lessen the
strictness of the rule, but it is irrelevant for determining whether the
classification is acceptable.
The following significant propositions are revealed by an examination of Ss.
24 to 27 of the Indian Evidence Act and S. 162 of the Code of Criminal
- Regardless of whether a person is in custody or not, any confession he
makes to a police officer or whose making is procured by an inducement,
threat, or promise referring to the charge against him and coming from a
person in authority is not admissible against him in any proceeding in which
he is charged with the crime.
- Unless it is made in the immediate presence of the Magistrate, a
confession made by a person while they are in the custody of a police
officer to a person other than a police officer is not admissible as
evidence in a case where they are accused of committing an offense.
- The information provided by a person while in police custody, whether it
be confessional or otherwise, is provable in a court action when he is
accused of committing an offense if it distinctly pertains to the fact that
was discovered as a result.
- If it is otherwise relevant, a remark someone makes to someone else
while they are not in jail, regardless of whether it amounts to a
confession, can be proven.
- Except to the extent permitted by Section 27 of the Indian Evidence Act,
a statement made by a person to a police officer during an investigation of
an offense under Chapter 14 of the Criminal Procedure Code may not be used
for any purpose at any inquiry or trial in respect of any offense that was
under investigation at the time the statement was made in which the person
is concerned as a person accused of an offense.
This case decided upon the question of whether Section 27 of the Indian Evidence
Act reading with Section 162(2) of the Code of Criminal Procedure is intra vires
or not. The majority judgment answered this question and established this
landmark judgment that explains why the above article is not against Article 14
of the Constitution. The case travel through the session court to the high court
and finally to the supreme court where this constitutional question was decided.
The high court of UP ruled in the favour of Deoman Upadhyaya and acquitted him
on the grounds that Section 27 of the Indian Evidence Act is ultra vires. The
supreme court corrected the decision that Section 27 of the Indian Evidence Act
reading with Section 162(2) of the Code of Criminal Procedure is intra vires and
sentenced Deoman to death using its power under Article 136 of the Constitution
to put an end to this case.
Analysis Of The Author:
The majority opinion of the case reasoned upon the idea that the classification
made under Section 27 of the Indian Evidence Act reading with Section 162(2) of
the Code of Criminal Procedure is intra vires and not contrary to Article 14 of
the Constitution, holds more ground than the Judgement of Justice Subba Rao who
went to dissent with the majority judgment.
The majority decision also follows the doctrine of double effect, i.e.,
everything has some good effects and some bad effects, but due to those little
bad effects of the stated article good effects must not be overshadowed. The
part of the Judgment that explains if the person in custody has some benefits so
does the person, not in custody enjoys some benefits as well is the key aspect
of this Judgement.
Mentioning the objects sought by the article that is extremely important to
bring justice put the final nail in the coffin to wrap the judgment. The case is
a prime example where a procedural ambiguity can lead a murderer set free, but
the bench handled this case beautifully and ended up serving the Justice.
Written By: Abdul Haseeb,
National Law University Lucknow.