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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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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)