# JAFFER HUSSEIN DASTGm v. STATE OF MAHARASHTRA

- **Citation:** [1970] 2 S.C.R. 332
- **Court:** Supreme Court of India
- **Decided:** 1969-09-11
- **Case number:** Criminal Appeal No. 84 of 1968
- **Bench:** S. M. S!Kri, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaffer-hussein-dastgm-v-state-of-maharashtra-4808
- **Pages:** 10

## Headnote

Jndian Evidence Act, 1872, s. 27--Scope of.
The appellant was charged under s. 379/34 l.P.C. for committing
the.ft of a parcel containing diamonds along~ with the, two other persons.
In the course of investigation the police went to a newspaper office where
they learnt that one of the co-accused had come to put in
advertisein.r.nt respecting the recovery of the diamonds, stating that it was in
his rossession, and left ·an address with the newspaper. The police could
not trace that co-accused, but later, as a result of infurmation f\ftnished
by the appellant to the police and the panchas the police were taken to
a pJace where the diamonds were discovered from that other co-accused.
On the question whether the statement of the appellant was edmissible
in evidence against him under s. 27 of the Indian Evidence Act,
HELD : The statement was not admissible.
Under s. 25 of the Evidence Act no confession made by an accused
to n police officer can be admitted in evidl nee against him. An exce.ption
to this is ho\\'ever provided by s. 26 which makes a confessional statement
made before a Magistrate admissible in evidence against an accused not·
withs.tanding the fact that he was in custody of the police when he made
the incriminating statement.
Section 27 is a proviso to s. 26 and makes
admissible so much of the statement of the accused Which leads to the
discovery of a fact deposed to by him and connected w_ith the crime,
hTe~pective of the question "'.:hether it is confessional or otherwise. The
essential ingredient of the section is that the information given by the
accused must lead to the discovery of the fact -which is the direct outcome
of such information.
Secondly, only such portion
o'f
the
information
given as is distinctly connected
wit~ the said recovery is
admissible
against the accused.
Thirdly, the discovery of the fact
must relate
to
the commissioh of some offence.
The embargo on statements
of the
accused before the police will not apply if all the above conditions are
.fulfilled. If an accused charged with a theft of articles or receiving stolen
articles, within the meaning of s. 411 l.P.C.. states to the police. 'I will
shew you the articles at the place where I have kept them' and the
articles are actually found there, there can be no doubt that the informa·
tion given by him led tO the discovery of a fact i.e. keeping of the articles
by the accused at the place mentioned.
The
discovery of the
fact
deposed to in such a case is not the discovery of the articles but the
discovery of the fact that the articles were kept by the accused at a
par1icular place.
In principle. there is no difference between the above
statement and that made by the appellant in this case which in effect
fs that 'I will show you the person to whom I have given the diamonds
exceeding 200 in number'.
The only difference between the two statements is that a 'named person' is substituted for 'the place' where the
article is kept.
In neither caoe are. the articles or the diamonds the
fact discovered. [338 C-HJ
In the present case, the police had learnt earlier that the other accused
hnd the custody of the diamonds .. Therefore, the statement of the appel-
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JAFFER HUSSEIN v. MAHARASHTRA (Mitter, J.)
333.·
lant that the other accused had the custody of the diamonds
would not
~ something unknown to the police so as to constitute. 'a fact deposed
to as discovered in consequence of information received' from the appellant.
The discovery, if any, merely related to the whereabouts of the
other accused.
There was no discovery of any fact deposed to by the
appellant within the meaning of s. 27. If the police had not gone to the
otlice of the ne\rspaper and had not learnt of the complicity of the other
accu~ed with the crime., the statement of the appellant would amount.
to infurmation received from him relating to the discovery of the diamonds in the custody of that other accu<ed. [343 Bl
Pulukuri Katayya v. King Emperor, 76 I

## Text

332
JAFFER HUSSEIN DASTGm
v.
STATE OF MAHARASHTRA
September 11, 1969
(S. M. S!KRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.]
Jndian Evidence Act, 1872, s. 27--Scope of.
The appellant was charged under s. 379/34 l.P.C. for committing
the.ft of a parcel containing diamonds along~ with the, two other persons.
In the course of investigation the police went to a newspaper office where
they learnt that one of the co-accused had come to put in
advertisein.r.nt respecting the recovery of the diamonds, stating that it was in
his rossession, and left ·an address with the newspaper. The police could
not trace that co-accused, but later, as a result of infurmation f\ftnished
by the appellant to the police and the panchas the police were taken to
a pJace where the diamonds were discovered from that other co-accused.
On the question whether the statement of the appellant was edmissible
in evidence against him under s. 27 of the Indian Evidence Act,
HELD : The statement was not admissible.
Under s. 25 of the Evidence Act no confession made by an accused
to n police officer can be admitted in evidl nee against him. An exce.ption
to this is ho\\'ever provided by s. 26 which makes a confessional statement
made before a Magistrate admissible in evidence against an accused not·
withs.tanding the fact that he was in custody of the police when he made
the incriminating statement.
Section 27 is a proviso to s. 26 and makes
admissible so much of the statement of the accused Which leads to the
discovery of a fact deposed to by him and connected w_ith the crime,
hTe~pective of the question "'.:hether it is confessional or otherwise. The
essential ingredient of the section is that the information given by the
accused must lead to the discovery of the fact -which is the direct outcome
of such information.
Secondly, only such portion
o'f
the
information
given as is distinctly connected
wit~ the said recovery is
admissible
against the accused.
Thirdly, the discovery of the fact
must relate
to
the commissioh of some offence.
The embargo on statements
of the
accused before the police will not apply if all the above conditions are
.fulfilled. If an accused charged with a theft of articles or receiving stolen
articles, within the meaning of s. 411 l.P.C.. states to the police. 'I will
shew you the articles at the place where I have kept them' and the
articles are actually found there, there can be no doubt that the informa·
tion given by him led tO the discovery of a fact i.e. keeping of the articles
by the accused at the place mentioned.
The
discovery of the
fact
deposed to in such a case is not the discovery of the articles but the
discovery of the fact that the articles were kept by the accused at a
par1icular place.
In principle. there is no difference between the above
statement and that made by the appellant in this case which in effect
fs that 'I will show you the person to whom I have given the diamonds
exceeding 200 in number'.
The only difference between the two statements is that a 'named person' is substituted for 'the place' where the
article is kept.
In neither caoe are. the articles or the diamonds the
fact discovered. [338 C-HJ
In the present case, the police had learnt earlier that the other accused
hnd the custody of the diamonds .. Therefore, the statement of the appel-
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JAFFER HUSSEIN v. MAHARASHTRA (Mitter, J.)
333.·
lant that the other accused had the custody of the diamonds
would not
~ something unknown to the police so as to constitute. 'a fact deposed
to as discovered in consequence of information received' from the appellant.
The discovery, if any, merely related to the whereabouts of the
other accused.
There was no discovery of any fact deposed to by the
appellant within the meaning of s. 27. If the police had not gone to the
otlice of the ne\rspaper and had not learnt of the complicity of the other
accu~ed with the crime., the statement of the appellant would amount.
to infurmation received from him relating to the discovery of the diamonds in the custody of that other accu<ed. [343 Bl
Pulukuri Katayya v. King Emperor, 76 I.A. 65 and K. Chinnaswamy
Reddy v. State of Andhra Pradesh, [1963] 3 S.C.R. 412. referred tu.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
84 of 1968.
Appeal by special leave from the judgment and order dated
February 9, 12, 1968 of the Bombay High Court in Criminal
Appeal No. 541 of 1966.
A. S. R. Chari, T. H. Sardar and M. l. Khowaja, for the
appellant.
B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by
Mitter, J.
The appellant along with two other persons were
prnsecuted on a charge under s. 3 79 /34 of the Indian Penal Code
for committing theft of a valuable parcel of diamonds from ~he
person of one Wadilal C. Mehta in a railway train between Masjid
Bander and Byculla railway stations on Novembe< 9, 1965 in
furtherance of their common intention. One of these two other
persons (hereinafter .described as accused No. 2) was acquitted by
the Chief Presidency Magistrate but the appellant and accused
No. 3 were each sentenced to undergo rigorous imprisonment for
12 months.
In appeal to the High Court the conviction of the
appellani was altered to one under s. 411 and the sentence was
reduced to one of nine months' rigorous imprisonment.
The
appellant has come up to this Court by special leave his main
con:ention being that a statement ascribed to him as having been
made to the police was artificial and false and in any event there
was no discovery of any fact made as a result of that statement
to render it admissible in evidence against him under s. 27 of the
Indian Evidence Act.
The case for the prosecution was as follows.
Mehta who
had about 215 pieces of diamonds in paper packets wrapped in a
silk handkerchief in the inside breast-pocket of his garment got
into a local train at Masjid Bander along with a companion at
about 8 p.m. on 9th November 1965. As the compartment which
they wanted to board was already full of passengers, he and his-
334
SUPREME COURT REPORTS
(1970] 2 S.C.R.
.companion had to stand in the passage outside the compartment
where there were many other persons already standing including
. accused 2 and 3.
Taking exception to the posture· of accused
No. 2 who was in close contact Mehta asked him to stand erect
and at the same time happened to notice a piece of his silk handkerchief lying on the floor of the compartment. Feeling his garment the realised that his pocket had been picked and the packet
of diamonds had disappeared. Mehta and his companion caught
hold of accused 2 and 3 and searched their persons but to no purpose.
At Byculla railway station they were dragged out of the
train on to the platform by Mehta and his companion but the
former managed to get free and slip back into the train. On
shouts being raised the train was brought to a halt but the two
accused could not be found.
Mehta went on to Victoria Terminus Railway station and lodged a complaint there about the happening.
He was shown a number of photographs kept at the
police station and he pointed ou: therefrom three of the persons
resembling the suspects concern.ed in the theft of his
diamonds.
The police immediately got busy and on t'.!e basis of some ;nformation received started looking for the
appellant but were
not
able to trace him that night.
The next morning ( 10-11-1965)
the complainant went to the V.T. Railway station once more and
identified the photographs of accused No. 2.
The appellant was
arrested at 12.30 p.m. on November 10, 1965 and accused No. 2
was app1 eh ended very shortly thereafter.
Both the
them were
brought to the C.I.D. office for interrogation. Apparently being
familiar with the modus operandi of pick pockets the police went
round the offices of sev.eral newspapers in Bombay and at the
office of Bombay Samachar Press S.I. Guad was told by Pawri,
the advertisement manager of the Bombay Samachar, that two
persons had come to their office on that day at about 11 a.m. for
the purpose of putting in an advertisement aboui the recovery of
a packet of diamonds. S. I. Guad learnt from Pawri the name and
addr.ess of one D. S. Parekh as one of the two persons who had
earlier interviewed Pawri for the insertion of the
advertisem~nt.
Attempts to contact Parekh by S. I. Gaud were however unsuccessful. On the morning of 11th November 1965 the appellant made
a statement before Inspector Mokasi and S. I. Graud and this wa5
recorded in the presence of panchas. The portion of the statement with which we are concerned reads :
"It will point out one Gaddi alias Ramsingh of Delhi
at Bombay Central Railway s~ation at III Class Waiting
Hall to whom I have given a packet containing diamonds of different sizes more than 200 in number."
The appellant thereafter led the police and the panchas to the
:'Said waiting hall and there from amOl'J a crowd of people the
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JAFFER HUSSEIN V. MAHARASHTRA (Mitter, J.)
335
appellant pointed out accused No. 3 to the police. D. S. Parekh
was also there. The appellant is alleged to have repeated there
the same statement which he had made earlier at the police station.
Accused No. 3 produced a handkerchief containing a packet in
which 211 diamonds were found. Both accused No. 3 and D. S.
Parekh were put under arrest. The diamonds were identified by
Mehta as a portion of those which he had lost on the night of 9th
November.
An identification parade was held by a Justice of
the Peace at 4.15 p.m. at which Mehta and his companion identi·
fied the appellant as also accused 2 and 3 as being persons who
were sta;1ding in the passage outside the first class compartment of
the local train when Mehta's pocket was picked.
The High Court came to the conclusion that the complicity
of the appellant with the rrime alleged rested only on two pieces
of evidence brought forward at the trial. The first was his identi·
fication by Mehta and his companion at the identification parade
to the effect that he was present in the train on the material date
and at the material hour.
By itself this means nothing because
there were a number of other persons who were standing in tte
passage at the same time and there is no suggestion-and indeed
there could be none- that any of these persons were connected
with the crime.
To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished. by the statement a!leg·
ed to have been made by the appellant to the police and the
panchas in consequence whereof he was said to have led the police
party to the Bombay Central railway station waiting hall and to
the discovery of the diamonds from accused No. 3. As the statement of the accused recorded above was in the nature of a confession it would come under the embargo of section 26 of the
Evidence Act unless it can be brought within the ambit of s. 27
of the Evidence Act which reads :
"Provided that, when any fact is deposed to as discovered in consequence of information received from a
person accused of any .:iffence, in the custody of a police
officer, so
much of
such information,
whether it
amounts to a confession or not, as relates distinctly to
the· fact thereby discovered, may be proved."
In order that the section may apply the prosecution must estab·
lish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact wl.ich the police had not previously
learnt from other sources and that the knowledge of the fact was
first derived from information given by the accused. If the police
had no information before of the complicity of accused No. 3
with the crime and had no idea as to whether the diamonds would
336
SUPREME COURT REPORTS
(1970] 2 S.C.R.
be found with him and the appellant had made a statement to the
police that he knew where the diamonds were and would lead
them to the person who had them, it can be said that the discovery of the diamonds with the third accused was a fact deposed
to be the appellant and admissible in evidence under s. 27. However, if it be shown that the police already knew that accused
No. 3 had got the diamonds but did not know where the said
accused was to be found, it cannot· be said that the information
given by the appellant that accused No. 3 had the diamonds and
could be pointed out in a large crowd at the waiting hall led to
the discovery of a fact proving his complicity with any crime within the meaning of s. 27. The fact deposed to him would at best
lead to the discove1y of the whereabouts of accused No. 3.
Under section 25 of the Evidence Act .no confession made by
an accused to a police officer can be admitted in evidence against
him.
An exception to this is however provided by section 26
which makes a confessional statement made before a Magistrate
admissible in evidence against an accused notwithstanding the fact
that he was in the custody of the police •vhen he made the incriminating statement. Section 27 is a proviso to section 26 and makes
admissible so much of the statement of the acc•Jsed which leads
to the discovery of a fact deposed to by him and connected with
the crime, irrespective of the question whether it is confessional
or otherwise.
The essential ingredient of the section is that the
information given by the accused must lead to the discovery of
the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly
connected with the said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the commission
of some offence.
The embargo on statements of the accused
before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving
stolen articles, within the meaning of s. 411 I.P.C. states to the
police, 'I will show you the articles at the place where I have
kept them' and the articles are actually found there, there can be
no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the
place .nentioned. The discovery of the fact deposed to in such a
case is not the discovery of the articles but the discovery of the
fact that the articles were kept by the
accused at a particular
place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect
is that 'I will show you the person to whom I have given the
diamonds exceding 200 in number".
The only difference between
the two statements is that a "named person" is substituted for
'the place' where the article is kept. In neither case are the articles
er the diamonds the fact discovered.
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JAF,FER HUSSEIN v. MAHARASHTRA (Mitter, J.)
337
The section was considered by the Judicial Committee of the
Privy Council in Pulukuri Kotayya v. King Emperor('). A ques·
tion there arose as to what part of a statement of the accused
leading to the recovery of a knife in a murder case was admissible in evidence.
The statement read :
"About 14 days ago, I Kotayya and people of my
party lay in wait for Sivayya and others at about sunset
time at the corner of Pulipad tank. We all beat Boddupati China Sivayya and Subbayya to death.
The remaining persons Pullayya, Kotayya and Narayana ran
away.
Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands.
lie gave it to me then. I hid it and my stick in the rick
of Venkatanarasu in the village. I will show if you come.
We did all this at the instigation of Pulukuri Kotayya."
The Board held that the whole of the statement except the passage
"I hid it (a spear) and my stick in the rick of Venkatanasrasu in
the village.
I will show if you come" was inadmissible.
Holding that the extent of the information admissible must depend on
the exac~ nature of the fact discovered to which such information
was required to relate the Judicial Committee pointed out that
"the fact discovered embraces the place from which the object
is produced and the knowledge of the accused as to this, and
the information gi?en must relate distinctly to the fact."
The
Board was careful to observe that "information as to past user,
or the past history of the object produced was not related to its
discovery in the setting in which it was discovered."
This Court had to consider the scope of s. 2 7 of the Evidence
Act in K. Chinnaswamy Reddy v. State of Andhra Pradesh( 2 ).
There the appellant was convicted under s. 411 LP .C. by an Assistant Sessions Judge.
He was tried along with another
person who was convicted under ss. 457 and 380 I.P.C. A house
had been burgled and valuable articles stolen. During the course
of investigation the police recovered 17 ornaments on the information given by the appellant.
The other accmed had also given
information on the basis of which anohter stolen ornament was
recovered. The Assistant Sessions Judge came to the conclusion
that the other accused had actually committed house breaking and
had removed the ornaments from the house burgled and had handed over 17 of them to the appellant.
He also came to the conclusion that the 17 ornaments recovered .at the instance of the appellant were in his possession and he therefore found him guilty
under s. 411 I.P.C. On appeal the Sessions Judge held that the
appellant had not been proved to be in possession of the 17 orna-
(1) 76 I.A. 65.
(2) (1963) 3 S.C.R. 412.
338
SUPREME COURT REPORTS
[1970] 2 S.C.R.
ments which were recovered at his instance from a garden. According to the Sessions Judge the full statement of the appellant
that "he would show the place where he had hidden them (the
ornaments)" was not admissible against him.
The Sessions Judge
held that the part of the statement of the appellant which related
to his having hidden the ornaments was :nadmissible. There was
a criminal revision to the High Court and re-trial was ordered and
it was against that order that the appeal to this Court was directed.
Overruling the interpretation of the Sessions Judge, this Court
held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under s. 27 of the Evidence Act. It was said :
"These words (namely, where he had hidden them)
having nothing to do with the past history of the crime
and are distinctly related to the actual discovery that
took place by virtue. of that statement."
The contention that in a case where the offence consisted of possession even the words "where he had hidden them" would be in·
admissible as it amounted to an admission by the accused that he
was in possession of them was rejected on the grourtl that if the
statement related distinctly ·to the fact thereby discovered .it would
be admissible in evidence irrespective of the question as to whether it amounted to a confession or not. There can be no doubt
that the portion of the alleged statement of· the appellant extracted by us wonld be admissible in evidence.
The question still remains as to whether the said statement was
really a discovery of a fact disposed to or weather the i :. was no
discovery within the meaning of section 27 of the Evidence Act
because the police was already in possession of the fact that the
accused No. 3 was a person who had the diamonds. In order to
find out the extent of the knowledge of the police as to the whereabouts of the diamonds it is necessary to look at the testimony
of S. I. Gaud and Pawri, the advertisement manager, of the
Bombay Samachar. Gaud stated at the trial that he had taken up
the investigation at about 11 p.m. on the nigh~ of 9th November
1965 and after going to V. T. Railway station he had gone to
Kamathipura 6th lane to trace the appellant on the basis of some
information received at the railway station. He learnt the next
day about the identification of the photograph of the second accused by the complainant and arrested the appellant at 12.30 p.m.
a,nd the second accused at 1 p.m. on the same day. The same
afternoon he visite.d different newspaper establishments including
that of Bombay Samachar Press and received information from
the advertisement manager, Pawri in consequence whereof he
went to find D. S. Parekh. He did not succeed in tracing him
anti continuing the interrogation of the appellant and the second
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JAFFER HUSSEIN v. MAHARASHTRA (Mitter, J.)
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accused, he called panchas on the morning of 11th November to
have the statement of the appellant recorded. Thereafter he went
to ·the Bombay Central railway station and there found the diamonds with the accused No. 3 pointed out to him by the appellant. In cross-examination he said that he had contacted Pawrt
at 3 p.m. on 10th November but he had not asked Pawri to
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produce the advertisement material nor was the same shown to·
him.
His testimony was that he had only asked for the name
and address of the person who had given him the advertisement
mateiial and Pawri had done so from memory. He denied having
seen any letter or any advertisement material at Pawri's office. He
also denied that he had told Pawri not to publish the advertiseC
ment. It is to be noted that Police Inspector Mokashi examined
before S. I. Gaud at the trial had stated in his examination-mchief that at 2.30 p.m. on 10-11-1965 he had asked Gaud to visit
different newspaper establishments including Bombay Samachlll"
to find out whether the appellant had sent anyone there to surrender the diamonds as unclaimed.
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Pawri's evidence was that two persons had come to see him
on November I 0, 1965 for the purpose of putting in an advertisement relating to the finding of a packet of diamonds. Accord·
ing to Pawri the two persons had given him a text of an advertisement to be published along with a covering letter signed by
one and counter-signed by the other and that the third accused
was one of the persons who had met him at his office and that the
covering letter as well as the advertisement material had been
signed by both the persons who had met him. The charges for
advertisement amounting to Rs. 40 had been paid by one of them
and a receipt taken. One of the two persons had also produced a
card of Dawood Suleman attached. to the covering letter in response to a request for identification. The leUer dated 10-11-1965
shows that it was addressed to the manager, Bombay Samachar
signed by Ramsingh Santram and Dawood Suleman Ghanchi ::.nd
the text of it :
"We have found diamond packets on (platform) No.
3 of Masjid Bunder station at eight o'clock at night on
the date 9-11-1965.
A public notice in respect thereof
is sent herewith.
Please publish the same on the first
page of the issue dated 11-11-1965, Thursday."
The text of the statement meant for insertion in the newspaper
ran:
:'A diamond packet has been found at Bombay Central Railway station on 9-11-65. Please contact Bombay Samachar by proving identity and paying the charges
.for the public notice.»-
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SUPREME COURT REPORTS
.Below the above were the words :
'Care of' Anand Savarorup Samma, .
Market, West Malad.
Ramsingh Santram
Dawood Suleman Ghanchi
Ghoghari Mohalla
136, Niaz Building Ground Floor,
Bombay-3.
[1970]2 S.C.R.
·Pawri stated that Bombay Central railway station had been writ-
·ten by him after scoring out Masjid Bunder. In cross-examination he said that the two persons had brought the diamonds and
wanted to leave the same at the newspaper office but this was
declined.
They had come to the office at about 11 a.m. and
seen a director before meeting the witness.
The advertisement
was to be published on the morning of 11th but this was not done
because the police had given instructions to the contrary. The
police had gone to their office in the afternoon when he had told
them what had taken place in the morning.
In view of the evidence of Pawri and Mokashi it is not pos·
sible to accept the testimony of Gaud. It is incredible that Guad
who had gone to the newspaper· office ~pecially for the purpose
of finding out whether anybody had approached the newspaper
people to surrender the diamonds would not ask Pawri in detail
about the persons who had met him or what they had told him
or what they had done about the publication of the finding of the
diamonds.
Pawri's definite statement was that he had told the
police all that had happened in the morning. In our view, Pawri
must have shown Gaud the advertisement material, the covering
letter with the card and the names of the two persons and the
address of one of them.
He could not possibly have failed to tell
Gaud that the two persons who had come to him had even offered
to hand over the diamonds.
There is no positive evidence as to
whether Gaud had asked the Bombay Samachar people not to
insert the advertisement on the morning of the 11th. But nothing
turns on that. It was 11.0'clock·in the morning when Parekh and
accused No. 3 had gone to the newspaper office and it was about
3 in the afternoon that Gaud met Pawri for the purpose of making
enquiries.
Gaud's statement that Pawri had given him Parek1l's
address from memory cannot be accepted. Besides it is abs11rd
·to suggest that Gaud would not have asked Pawri to show him the
documents made over by Parekh and accused No. 3 or that there
would have been any reluctance on the part of Pawri to tell Gaud
about it when he knew that the police were making investigations
about a packet of diamonds picked from the pocket of someone
-who had lodged a complaint with the police.
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A
B
c
D
JAFFER HUSSEIN v. MAHARASHTRA (Mitter, J,)
341
In our: view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds. Therefore the statement' of the appellant that accused No. 3 had the custody of the
diamonds would not be something unknown to the police so as to
constitute "a fact deposed to as discovered in consequence of the
information received" from the appellant. The discovery, if any,
merely related to the whereabouts of accused No. 3. There w:;s
no discovery of any fact deposed to by the appellant within i:hc
meaning of s. 27. If the police had not gone to the office of the
Bombay Samachar and had not learnt of the complicity of the
third accused w:th the crime, the statement of the appellant would
amount to information received from him relating to the discovery
of the diamonds in the custody of accused No. 3.
In the res_ult although the statemen~ might otherwise have
been admissible in evidence, that there was no discovery of a fact
connecting the appellant with the receipt of the diamonds which
were stolen within the meaning of s. 27 of the Evidence Act because the police already knew that the third and or the fourth
accused had the diamonds. The appeal must be allowed and the
appellant directed to be set at liberty.
Y.P.
Appeal allowed.
:LJSopCI/70_:1 O