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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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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.

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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)