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.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.808 OF 2010
Mehboob Ali & Anr. Vs. State of Rajasthan
[With Crl.A. No. 1088 of 2010]
Dated;October 27, 2015
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 furtherPage 2
2
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 wasPage 3
3
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 exhibitsPage 4
4
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 ofPage 5
5
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 courtPage 6
6
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 FirozPage 7
7
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 thePage 8
8
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 madePage 9
9
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 aPage 10
10
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 fakePage 11
11
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.Page 12
12
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 thePage 13
13
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.Page 14
14
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 thesePage 16
16
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.Page 17
17
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)
No comments:
Post a Comment