Full Judgment
A.R. Somanath Iyer, J.
1. There was a prosecution against the accused on charge that he committed an offence of theft of two new lorry tyres from the garage of P.W. 1. The lorry belonged to P.W. 4, whose driver P.W. 2 had taken the lorry to the garage of P.W 1 an August 21 1963 with two new tyres which P.W. 4 wanted to be fixed to his lorry. P.W. 1 stated that the disks were attached to the tyres but since the tyres could not be attached to the lorry, the lorry and the tyres remained in the garage. P.W. 3 the watchman of P.W. 1 gave evidence that at 4 a.m. on August 21, 1963 he found the two tyres inside the garage but some time before 6 a.m. he found them missing. He accordingly reported the matter at 6 a.m. to P.W. 2 who was sleeping there.
2. P.W. 7 the sub-inspector of police, Kalasipalyam, stated that he received the complaint Exhibit P-1 on August 23, 1963 from P.W. 1 about the theft of the tyres. He added that he suspected the accused and on September 26, 1963 he acquired information that the accused had been arrested and detailed in the Central Police Station. The witness added that he proceeded to the Central Police Station, and, when interrogated, the accused furnished information which led to the recovery of the tyres from P.W. 5. P.W. 5 gave, evidence that the accused sold those two tyres to him at 5 a.m. on the morning of August 22, 1963.
3. The Magistrate believed the evidence given by P.Ws. 1, 2 and 4 that the tyres belonged to P.W. 4 and had been entrusted to P.W. 1 as alleged. But he did not believe the evidence of P.W. 5. He was persuaded to think that P.W. 5 was a habitual receiver of stolen goods and that his evidence was therefore unacceptable.
4. In regard to the information which led to the discovery of the tyres and their seizure from P.W. 5, the Magistrate took an extremely unsupportable view that since the accused was in the custody of the officers in charge of the Central Police Station when he gave the information Ex. P-4 to P.W. 7, and, not in the custody of P.W. 7, the information was not admissible and did not fall within Section 27 of the Evidence Act.
5. Mr. Ashrit, the learned Government Pleader urged before us that both in regard to the appreciation of the evidence of P.W. 5 and as to the admissibility of Exhibit P-4, the view taken by the Magistrate do not stead scrutiny. II seems to us that is right for making this submission.
6. It was not right on the part of law Magistrate to discard the testimony of P.W. 3 merely on the ground that he was a habitual receiver of stolen goods: Even if he was a habitual receiver, the fast that the tyres which were Seized from him on information furnished by the accused, is what completely brings home the offence to the accused.
7. In regard to, Exhibit P-4 it is enough : to state that the view, taken by the Magistrate is equally unsupportable. P.W. 7 gave evidence that the accused gave information which he recorded in Exhibit P-4. It was that information which led to the discovery of the two tyres which were seized from P.W. 5. There is nothing in Section 27 of the Evidence Act which takes out of its provisions, information given to a police officer by a person who was in the custody of another police officer. So long as the information was what led to the discovery of the tyres, it does not matter in whose custody the accused was. The provisions of Section 27 of the Evidence Act are palpable where information is received from a person accused of an offence who is in the custody of a police officer and that information leads to the discovery of a relevant fact. The section does not insist on the informant being in the custody of the police officer investigating the offence to which the information relates. Whoever may be the police officer who has custody of the accused, if the information leads to the discovery, or a relevant fact, that information is dearly what is admissible under Section 27. That being so the Magistrate was not right in excluding From consideration the information given to P.W. 7.
8. In the course of the acquittal order the Magistrate incidentally stated that it appeared to him probable that the information was not voluntarily given to P.W. 7. Mr. Ashrit the learned Government Pleader is in our opinion right in pointing out that when P.W. 7 gave evidence, no suggestion was made to him that the information was not voluntarily transmitted.
9. The accused who denied that he committed the offence of theft, did not explain how he was able to give information which led to the discovery of the stolen articles, and that being so, as pointed out by the Supreme Court in Wasim Khan v. State of U.P. : 1956 CriLJ790 . It would be reasonable to infer that the accused had committed the offence of there with which he was charged.
10. We should, therefore, in our opinion, reverse the order of acquittal and convict the accused of an offence punishable under Section 379 of the Penal Code. Having regard to all the circumstances, it appears to us that we should sentence him to suffer rigorous imprisonment for one month. It is ordered accordingly.