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Thursday, October 29, 2015

“The approver and one of the appellants were arrested practically red- handed. They made statements to the officer who arrested them involving admissions of guilt. They went further and gave a list of the other members of the gang. Thereupon the officer made a report in writing to his superior, containing the information which he had received, including the names of those other persons received from the two men arrested. Somehow or other, the learned Judge has described this police report, which is merely the report of a confession, as “the first information report.” Now the first information report is a well known technical description of a report under section 154, Criminal Procedure Code, giving first information of a cognizable crime. This is usually made by the complainant, or by some one on his behalf. The language is inapplicable to a statement made by the accused. The novelty of a statement by an accused person being called the first information report was to me so strange, that when counsel for the appellants addressed the argument to me attacking the Judge’s use of the first information report, I took no notice of the argument. The learned Judge realized that he was dealing with a confession, but he momentarily failed to appreciate that the document itself was inadmissible, and that the only way in which the information relied upon could be used was by section 27. That is to say, with regard to the other accused, the officer giving evidence might say : “I arrested them in consequence of information received from Narain and Thakuri. When I arrested them they made a statement to me which caused me to arrest these people”. The use which can legitimately be made of such information is merely this, that when direct evidence is given against the accused at the trial and there was evidence against the accused, it is open to the defence to check such evidence by asking whether the name of a particular accused was mentioned or not at the time….” 20. Considering the aforesaid dictums, it is apparent that there was discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co- accused was nabbed on the basis of identification made by the accused Mehboob and Firoz. He was dealing with fake currency notes came to the knowledge of police through them. Recovery of forged currency notes was also made from Anju Ali. Thus the aforesaid accused had the knowledge about co-accused Anju Ali who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the Police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in sections 25 and 26 of the Evidence Act.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.808 OF 2010


Mehboob Ali & Anr.                           … Appellants
Vs.
State of Rajasthan                                 … Respondent
[With Crl.A. No. 1088 of 2010]



                               J U D G M E N T


ARUN MISHRA, J.

1.    The appeals have been preferred against the common judgment and  order
dated 28.5.2009 passed by  the  High  Court  of  Judicature  for  Rajasthan,
Jaipur Bench in Criminal Appeal Nos.39/2006 and 40/2006 and other  connected
matters, thereby upholding conviction and sentence  of  the  appellants  for
commission of offence under section 489C for 3 years’ RI, for  section  489B
read with section 120B IPC of IPC five  years’  RI  and  fine  of  Rs.1000/-
each;  in  default  to  further  undergo  one  month  simple   imprisonment.
Appellants Mehboob Ali and Firoz were convicted and sentenced under  section
489B read with section 120B IPC for 5 years’ RI and fine of  Rs.1,000/-;  in
default to suffer one  month  simple  imprisonment.  Other  accused  persons
Liyakat Ali and Puran Mal were also convicted.
2.    As per the prosecution case,  on  6.1.2004  FIR  No.459  of  2003  was
registered at Police Station Ramganj, Jaipur in  State  of  Rajasthan.  From
possession of accused Puran Mal, 5 currency  notes  of  Rs.100  denomination
were found. Three currency notes were of  the  same  number.  Remaining  two
currency notes also bore the same number which were  apparently  forged.  He
was arrested vide Memo P-6 and recovery  memo  P-7  was  drawn.  Case  under
section 489C read with section 120B IPC  was  registered.  On  interrogation
Puran Mal informed that he had received the  currency  notes  from  Mehboob,
Firoz and  Ram  Gopal.  Mehboob  and  Firoz  were  arrested  on  information
furnished by accused Puran Mal. From Ram Gopal’s house currency notes  worth
Rs.41,900/- were recovered from the possession of  Puran  Mal.  Mehboob  and
Firoz informed the Police that they have obtained the  currency  notes  from
Anju Ali, and they would identify Anju Ali. They were  taken  to  Delhi.  On
identification made by them Anju Ali was arrested and  fake  currency  notes
of the value of Rs.1,75,000/- were recovered from his possession.  Anju  Ali
in turn informed that he used to receive the  currency  notes  from  accused
Majhar. On the information  and  identification  of  Anju  Ali,  Majhar  was
arrested and on his search, fake currency notes of the value of  Rs.48,220/-
were recovered. Majhar in  turn  informed  that  he  used  to  receive  fake
currency notes from Liyakat Ali. Liyakat  Ali  was  arrested  and  from  his
possession currency notes of the  value  of  Rs.2,39,500/-  were  recovered.
Some semi-made currency notes of  Rs.500  denomination  and  equipments  for
fabricating notes were also recovered from his possession and on  the  basis
of the information furnished by him, additional  forged  currency  notes  of
the value of Rs.2 lakhs were recovered from his Indica car.
3.    The fake currency notes have been recovered  from  the  possession  of
Puran Mal, Anju Ali, Majhar and Liyakat Ali. The  recovered  currency  notes
were sent to Indian Security Press, Nasik. Shyam Singh,  PW-16,  Manager  of
RBI stated that the seized currency notes were counterfeit. Report P-34  was
submitted. The evidence with respect to how material was  deposited  in  the
store house had also been  adduced  by  the  prosecution.  Reports  sent  by
Security Press are exhibits P-46, P-47,  P-48  and  P-51.  Raghuveer  Singh,
SHO, identified the articles recovered from  Puran  Mal,  Anju  Ali,  Majhar
etc.
4.    Accused Mehboob was arrested vide memo P4.  He  submitted  information
vide Memo Ex. P41. Accused Firoz submitted information  vide  Memo  Ex.  P42
under section 27 of the Evidence Act. Both  of  them  informed  that  forged
currency notes were supplied to them by Usman Bhai and  Anju  Ali  residents
of Delhi, and they would identify them.  The  information  was  recorded  by
Raghuveer Singh, IO. He had taken the accused Mehboob and  Firoz  to  Delhi.
There both of them identified one Maruti car DL-3C-V-2927 in  Street  No.13,
Seelampur, Delhi. They also identified the person who  was  sitting  in  the
car as Anju Ali for which memo Ex. P16 was prepared and  signatures  of  two
witnesses Mukesh  Yadav-PW13  and  Vinod  Sharma-PW11  were  also  obtained.
Mahaveer PW24 accompanied Raghuveer Singh, IO.  Vinod  Sharma,  PW11  though
turned hostile, admitted his signatures on memo Ex. P16 and  also  supported
the factum of visiting Delhi along with Police. He  drove  Vehicle  No.RJ-14
7C 4668 and took the policemen from Jaipur to Delhi. Mukesh Yadav PW13  also
supported that he had taken the Police to  Delhi  by  his  Qualis  No.RJ14T-
5649. Identification  of  Anju  Ali  by  Mehboob  Ali  and  Firoz  was  also
supported. On arrest of Anju Ali vide memo P13 and on search from his  right
side pocket of Pant, 350  forged  currency  notes  in  the  denomination  of
Rs.500 totalling Rs.1,75,000/- were recovered which were also  found  to  be
forged.
5.    Accused Anju Ali had furnished information  memo  P43  dated  7.1.2004
that he had obtained the currency notes in the denomination of  Rs.500  from
Majhar and he would identify Majhar. On the  basis  of  his  information  on
being identified by Anju Ali, Majhar was arrested on 9.1.2004 at  8.15  p.m.
when he was standing near ISBT, where Metro Railway was under  construction.
  Both PW11 and PW13 have confirmed their signatures on  the  memos.  Majhar
was arrested vide Memo P-31. On search  of  Majhar  currency  notes  of  the
denominations of Rs.500, Rs.100 and Rs.20 were recovered vide memo P19  from
the small bag kept by him in the socks of his  left  foot.   Besides,  Vinod
Sharma PW11, Mukesh Yadav PW13 and Mahaveer Singh PW24 have  also  supported
the factum of recovery and furnishing of information. Currency  notes  worth
Rs.48,220 were recovered from Majhar.
6.    The prosecution examined in all 28 witnesses  and  53  documents  were
exhibited. In defence 3 witnesses were examined. The trial court as well  as
the High Court have convicted and sentenced  the  appellants  as  aforesaid,
hence the appeals.
7.    It was submitted on behalf of the appellants  Mehboob  Ali  and  Mohd.
Firoz that  the confessional statement of  accused  persons  recorded  under
section 27 of Evidence Act is not admissible as  the  accused  persons  were
under the custody of Police. No recovery has been made from accused  Mehboob
Ali and Mohd. Firoz. As such their conviction is illegal and  is  liable  to
be set aside. On behalf of the accused Anju  Ali  and  Majhar  it  has  been
submitted that recovery from them has not been proved and  their  conviction
is bad in law.
8     With respect to the appeal of Anju Ali  and  Majhar,  it  is  apparent
that Anju Ali was arrested on the basis of information furnished by  Mehboob
and Firoz vide memos Ex. P41 and P42 and he was identified by the  aforesaid
accused persons while he was in  Maruti  car  in  Street  No.13,  Seelampur,
Delhi. Vinod PW-11 and Mukesh Yadav PW13 have signed the memo P16. The  fact
is also supported by Mahaveer Singh PW24. Though Vinod  turned  hostile  but
he has admitted his signatures on memo P16 and has supported the  factum  of
visiting Delhi along with Police. Mukesh Yadav, PW-13,  has  also  supported
that he had taken the Police to Delhi and Mehboob  and  Firoz  have  pointed
out that Anju Ali was in the car on the basis of that he was  arrested  vide
memo P30.  On  search  of  Anju  Ali,  350  forged  currency  notes  in  the
denomination of Rs.500 worth Rs.1,75,000/- were seized vide recovery memo P-
26.
9.    With respect to accused  Majhar,  information  P43  was  furnished  by
accused Anju Ali. Anju Ali identified Majhar  while  he  was  standing  near
ISBT. Mukesh PW-13 has proved memo P43. Vinod PW11, has  also  admitted  his
signatures  on  P-31.  Vide  recovery  memo  P19,  currency  notes  in   the
denominations of Rs.500, Rs.100 and Rs.20 aggregating  to  Rs.48,220/-  were
recovered from Majhar. They have been proved to be fake on the basis of  the
aforesaid reports submitted by the Indian Security Press,  Nasik  Road.  All
the currency notes were found to be forged. Shyam Singh, Manager, PW16,  has
proved the sending of the currency  notes  to  Indian  Security  Press.  The
currency notes have been proved to be forged and correctness of  reports  in
this regard has not been questioned in the appeals.
10.   In the appeal preferred by Mehboob Ali and Firoz, it was submitted  by
learned senior counsel appearing  on  their  behalf  that  the  confessional
statement of the accused recorded under section 27 of Evidence Act  was  not
admissible as there  is  no  recovery  of  the  currency  notes  from  their
possession. The confession made under the Police  custody  was  inadmissible
thus, there was no evidence to convict  the  appellants  Mehboob  and  Mohd.
Firoz.
11.    It is apparent from the facts of  the  case  that  initially  accused
Puran Mal was arrested and from his possession forged  currency  notes  were
recovered. On the basis of information furnished by him  that  the  currency
notes were handed over to him by accused Mehboob and Firoz, they,  in  turn,
have unfolded the entire sequence leading to arrest  of  accused  Anju  Ali.
Anju Ali was arrested on being identified by  Mehboob  Ali  and  Firoz  when
they were taken from Jaipur to Delhi and the  recovery  of  forged  currency
notes was made from Anju Ali. Anju Ali  identified  yet  another  co-accused
Majhar from whose possession also fake currency  notes  were  recovered  and
information supplied by Majhar ultimately led to arrest of Liyakat Ali  from
whose possession also forged currency notes and semi-printed currency  notes
were recovered along with instrument of printing fake currency notes.
12.      Section 25 of the Evidence Act provides that no confession made  to
a Police Officer shall be   proved  as  against  a  person  accused  of  any
offence. Section 26 provides that no confession made by any person while  he
is in the custody of a police officer, unless it be made  in  the  immediate
presence of a Magistrate, shall be proved as against  such  person.  Section
27 is in the form of a proviso, it lays down  how  much  of  an  information
received from accused may be proved.
13.   For application of section 27 of Evidence Act, admissible  portion  of
confessional statement has  to  be  found  as  to  a  fact  which  were  the
immediate cause of the discovery, only that would be part of legal  evidence
and not the  rest.  In  a  statement  if  something  new  is  discovered  or
recovered from the accused which was not in  the  knowledge  of  the  Police
before disclosure statement of the accused is  recorded,  is  admissible  in
the evidence.
14.   Section 27 of Evidence Act refers when any  “fact”  is  deposed.  Fact
has been defined in section 3 of the Act. Same is quoted below :

“Fact” means and includes—
(1) any thing, state of things, or relation of things, capable of being   by
the senses;
(2) any mental condition of which any person is conscious. Illustrations:
(a) That there are certain objects arranged in a certain order in a  certain
place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a  certain  intention,  acts  in
good faith, or fraudulently, or uses  a  particular  word  in  a  particular
sense, or  is  or  was  at  a  specified  time  conscious  of  a  particular
sensation, is a fact.
(e) That a man has a certain reputation, is a fact.  “Relevant”.  —One  fact
is said to be relevant to another when the one is connected with  the  other
in any of the ways referred to in the provisions of  this  Act  relating  to
the relevancy of facts.”


15.   It is apparent that on the  basis  of  the  information  furnished  by
accused Mehboob Ali and Firoz other accused,  Anju  Ali  was  arrested.  The
fact that Anju Ali was dealing with forged currency notes  was  not  to  the
knowledge of the Police. The statement of both accused has led to  discovery
of fact and arrest of co-accused not known to police.  They  identified  him
and ultimately statements have led to unearthing the racket of use  of  fake
currency notes. Thus the information  furnished  by  the  aforesaid  accused
persons vide information memos is clearly admissible which has  led  to  the
identification and arrest of accused Anju Ali and  as  already  stated  from
possession of Anju Ali fake  currency  notes  had  been  recovered.  As  per
information furnished by accused Mehboob and Firoz vide memos P41  and  P42,
the fact has been discovered by Police as  to  the  involvement  of  accused
Anju Ali which was not to the knowledge of the Police. Police was not  aware
of accused Anju Ali as well as the  fact  that  he  was  dealing  with  fake
currency notes which were recovered from him.  Thus  the  statement  of  the
aforesaid accused Mehboob and Firoz is clearly saved by section  27  of  the
Evidence Act. The embargo put by section 27 of the Evidence Act was  clearly
lifted in the instant case. The statement of the accused persons has led  to
the discovery of fact proving complicity of other accused  persons  and  the
entire chain of circumstances  clearly  makes  out  that  accused  acted  in
conspiracy as found by the trial court as well as the High Court.
16.   This Court in State (NCT of Delhi) v. Navjot Sandhu alias  Afsan  Guru
[(2005) 11 SCC 600] has considered the  question  of  discovery  of  a  fact
referred  to  in  section  27.    This  Court  has  considered  plethora  of
decisions and explained the decision in Pulukuri Kottaya & Ors.  V.  Emperor
[AIR 1947 PC 67]  and held thus :
“125. We are of the view that Kottaya case [AIR 1947 PC 67] is an  authority
for the proposition that “discovery  of  fact”  cannot  be  equated  to  the
object produced or found. It is  more  than  that.  The  discovery  of  fact
arises by reason of the fact that  the  information  given  by  the  accused
exhibited the knowledge or the mental awareness of the informant as  to  its
existence at a particular place.

126. We now turn our  attention  to  the  precedents  of  this  Court  which
followed the track of Kottaya case. The ratio of  the  decision  in  Kottaya
case reflected in the underlined passage extracted supra was highlighted  in
several decisions of this Court.

127. The crux of the ratio in Kottaya case was explained by  this  Court  in
State of Maharashtra v. Damu. Thomas J. observed that:  (SCC  p.  283,  para
35)

“The decision of the Privy Council in Pulukuri Kottaya  v.  Emperor  (supra)
is the most quoted authority for  supporting  the  interpretation  that  the
‘fact discovered’ envisaged in the section embraces  the  place  from  which
the object was produced, the knowledge of the accused  as  to  it,  but  the
information given must relate distinctly to that effect.”

In Mohd. Inayatullah v. State of Maharashtra [1976 1 SCC 828], Sarkaria,  J.
while clarifying that the expression “fact discovered” in Section 27 is  not
restricted to a physical or material fact which  can  be  perceived  by  the
senses, and that it does include a mental fact,  explained  the  meaning  by
giving the gist of what was laid down in Pulukuri Kottaya case (supra).  The
learned Judge, speaking for the Bench observed thus: (SCC p. 832, para 13)

“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  Pulukuri  Kottaya
v. Emperor (supra); Udai Bhan v. State of U.P. [1962 Supp (2) SCR 830]).”

17.   In State of Maharashtra v. Damu Gopinath Shinde & Ors.  [AIR  2000  SC
1691] the statement made by the accused that the dead body of the child  was
carried up to a particular spot and a broken glass piece recovered from  the
spot was found to be part of the tail lamp of the motorcycle  of  co-accused
alleged to be used for the  said  purpose.  The  statement  leading  to  the
discovery of a fact that accused had  carried  dead  body  by  a  particular
motorcycle up to the said spot would be admissible in evidence.  This  Court
has laid down thus :

“36. The basic idea embedded in Section  27  of  the  Evidence  Act  is  the
doctrine of confirmation by subsequent events. The doctrine  is  founded  on
the principle that if any fact  is  discovered  in  a  search  made  on  the
strength of any information obtained from a prisoner, such a discovery is  a
guarantee that the  information  supplied  by  the  prisoner  is  true.  The
information might be confessional or non-inculpatory in nature,  but  if  it
results in discovery of a fact it becomes a reliable information. Hence  the
legislature  permitted  such  information  to  be  used   as   evidence   by
restricting the admissible portion to the minimum. It is  now  well  settled
that recovery of an object is not discovery of a fact as  envisaged  in  the
section. The decision of the Privy Council in Pulukuri  Kottaya  v.  Emperor
AIR  1947  PC  67  is  the  most  quoted  authority   for   supporting   the
interpretation that the “fact discovered” envisaged in the section  embraces
the place from which the object was produced, the knowledge of  the  accused
as to it, but the information given must relate distinctly to that effect.

37. No doubt, the information  permitted  to  be  admitted  in  evidence  is
confined to that portion of the information  which  “distinctly  relates  to
the fact thereby discovered”. But the information to get admissibility  need
not be so truncated as  to  make  it  insensible  or  incomprehensible.  The
extent of information admitted should be consistent with  understandability.
In this case, the fact discovered by PW 44 is that A-3  Mukinda  Thorat  had
carried the dead body of Dipak to the spot on the motorcycle.

38. How did the particular information led to the discovery of the fact?  No
doubt, recovery of dead body of Dipak from the same canal was antecedent  to
the information  which  PW  44  obtained.  If  nothing  more  was  recovered
pursuant to and subsequent to obtaining the information  from  the  accused,
there would not have been any discovery of any fact at  all.  But  when  the
broken glass piece was recovered from that spot and that piece was found  to
be part of the tail lamp of the motorcycle of A-2 Guruji, it can  safely  be
held that the Investigating Officer discovered the fact that A-2 Guruji  had
carried the dead body on that particular motorcycle up to the spot.

39. In view of the said discovery of the fact, we are inclined to hold  that
the information supplied by A-2 Guruji that  the  dead  body  of  Dipak  was
carried on the motorcycle  up  to  the  particular  spot  is  admissible  in
evidence. That information, therefore, proves the prosecution  case  to  the
abovementioned extent.”


18.   In Ismail v. Emperor [AIR 1946 Sind 43] it was held that  where  as  a
result of information given by the accused another co-accused was  found  by
the police the statement by the  accused  made  to  the  Police  as  to  the
whereabouts of the co-accused was held to be admissible under section 27  as
evidence against the accused.
19.   In Subedar & Ors. v. King-Emperor [AIR 1924  All.  207]  it  was  held
that a statement made by the accused implicating himself and  others  cannot
be called ‘first information report’. However it was  held  that  though  it
could not be treated as first  information  report  but  could  be  used  as
information furnished under section 27 of Evidence Act. It was held thus :

“The approver and one of  the  appellants  were  arrested  practically  red-
handed. They made statements to the  officer  who  arrested  them  involving
admissions of guilt. They went further and gave a list of the other  members
of the gang.  Thereupon  the  officer  made  a  report  in  writing  to  his
superior, containing the information which he had  received,  including  the
names of those other persons received from the two men arrested. Somehow  or
other, the learned Judge has described this police report, which  is  merely
the report of a confession, as  “the  first  information  report.”  Now  the
first information report is a well known technical description of  a  report
under section 154, Criminal Procedure Code, giving first  information  of  a
cognizable crime. This is usually made by the complainant, or  by  some  one
on his behalf. The language is inapplicable  to  a  statement  made  by  the
accused. The novelty of a statement by an accused person  being  called  the
first information report was to me so strange, that  when  counsel  for  the
appellants addressed the argument to me attacking the  Judge’s  use  of  the
first information report, I took no notice  of  the  argument.  The  learned
Judge realized that he was dealing with a  confession,  but  he  momentarily
failed to appreciate that the document itself  was  inadmissible,  and  that
the only way in which the information relied  upon  could  be  used  was  by
section 27. That is to say, with regard to the other  accused,  the  officer
giving evidence might say : “I arrested them in consequence  of  information
received from  Narain  and  Thakuri.  When  I  arrested  them  they  made  a
statement to me which caused me to arrest these people”. The use  which  can
legitimately be made of such information is merely this,  that  when  direct
evidence is given against the accused at the trial and  there  was  evidence
against the accused, it is open to the defence to  check  such  evidence  by
asking whether the name of a particular accused was mentioned or not at  the
time….”

20.   Considering the aforesaid dictums,  it  is  apparent  that  there  was
discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Co-
accused was nabbed on the  basis  of  identification  made  by  the  accused
Mehboob and Firoz. He was dealing with  fake  currency  notes  came  to  the
knowledge of police through them. Recovery  of  forged  currency  notes  was
also made from Anju Ali. Thus the aforesaid accused had the knowledge  about
co-accused Anju Ali who was nabbed at their instance and  on  the  basis  of
their identification. These facts were not to the knowledge  of  the  Police
hence the statements of the accused persons leading  to  discovery  of  fact
are clearly admissible as per the provisions contained in section 27 of  the
Evidence Act which carves out an exception to the general  provisions  about
inadmissibility  of  confession  made  under  police  custody  contained  in
sections 25 and 26 of the Evidence Act.

21.   As a result, we find no merit in the appeals. The judgment  and  order
of sentence passed by the trial court and confirmed by the  High  Court  are
found to be appropriate. Thus the appeals being devoid of merit, are  hereby
dismissed.



                                        ………………………CJI
                                        (H.L. Dattu)



New Delhi;                              ……………………..J.
October 27, 2015.                            (Arun Mishra)














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