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)
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)
