A. N. SURTI, T. U. MEHTA, J.

( 1 ) [in this Triple murder case the accused was convicted under secs. 302-201 of the Indian Penal Code and his son under sec. 201 I. P. Code for alleged murder of the wife and two daughters of the accused Mr. M. M. Desai Advocate of the accused submitted that the trial Judge has erred in law in taking into consideration of the discovery evidence about the three dead bodies. His Lordships after narrating and discussing the facts of the case further observed:-

( 2 ) MR. Desai submitted that having regard to the aforesaid evidence of P. S. I. Pathak Ex. 38 panch Maganbhai Motibhai Ex. 13 and panch Manabhai Ex. 19 the following facts are established beyond any doubt. (1) That when the accused person were interrogated by the police on 25 April 1974 both the accused persons made a joint statement before the police and the panchas that they had buried the three dead bodies in their field and that they were willing to show the same. (2) That both the accused persons willingly and voluntarily entered the jeep and went to their field and both the accused persons removed the earth from the pit situated in their field. (3) That both the accused persons took out the three dead bodies from the pit situated in their field. On the strength of the aforesaid established facts Mr. Desai submitted that the learned trial Judge erred in law in taking into consideration the aforesaid discovery evidence for passing the ultimate order of conviction and sentence against the accused persons.

( 3 ) IN order to substantiate the aforesaid contention Mr. Desai firstly invited our attention to secs. 24 25 and 26 of the Indian Evidence Act 1872 Sec. 24 provides for confessions made by accused persons caused by inducement threat or promise and they are irrelevant in a criminal proceeding. Sec. 25 provides that no confession made to a police officer shall be proved as against a person accused of any offence. Sec. 26 provides for confessions made by accused persons in custody of police and the same can only be proved against the accused persons if they are made in the immediate presence of a Magistrate. Mr. Desai thereafter invited our attention to sec. 27 which is as follows :-PROVIDED that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as dates distinctly to the fact thereby discovered may be proved.

( 4 ) THE principle underlying sec. 27 of the Evidence Act is explained as follows in Naresh Chandra v. Emperor A. I. R. 1942 Calcutta 593 at page 603. Sec. 27 is enacted as an exception or qualifying rule of evidence being framed as a proviso upon the proceedings in secs. 25 and 26. One cannot fail to discern the evil or mischief which it is the intention of the Legislature to meet by enacting secs. 25 and 26 Evidence Act. Sec. 27 contemplates data which refute the possible discrediting circumstances in view of which secs. 25 and 26 are enacted by supplying material corroboration in the facts discovered. The principle upon which the rejection of confession made by an accused person to a police officer or which he is in the custody of a police officer is founded so that a confession thus made or obtained is untrustworthy. If circumstances however appear which rebut the presumption of its being false and demonstrate its truth the confession should be allowed. When in consequence of information furnished by the accused a fact is discovered. then the discovery of that fact supplies a guarantee of the truth of the information which may amount to a confession. The confession in so far as it is confirmed by the discovery should be deemed to be true.

( 5 ) MR. Desai submitted that in the instant case three dead bodies are discovered in consequence of information received by the police from both the accused persons charged with the offence and hence the aforesaid discove

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