JAIN, J.— This revision is directed against the judgment of learned Addl. Sessions Judge, Rajsamand dt. 22.2.84 whereby he has maintained the conviction of the petitioner u/s. 411 IPC passed by the learned Munsif and Judicial Magistrate, Rajsamand dt. 2.9.83 but reduced the sentence from one year to three months S.I.

(2). Brief facts of the prosecution case are that one Bhanwarlal lodged an F.I.R. on 3.2.80 alleging that a theft has been committed on 2.1.80 from his cycle shop. On this police registered a case u/s. 457 and 380 IPC. Challan was filed against the petitioner, Jamnanand and Avantilal. The learned Magistrate after conclusion of the trial acquitted two co-accused but convicted the petitioner u/s. 411 IPC on the basis of recovery and sentenced him to one year R.I. On appeal, the conviction of the petitioner was maintained but the sentence was reduced as stated above.

(3). Mr. D.S. Shishodia, learned counsel for the petitioner has submitted that when theft was not proved and the other co-accused have been acquitted, the petitioners conviction only on the basis of alleged recovery, which is not admissible, cannot be maintained. He has placed reliance on Pohalya Motya Valvi Vs. State of Maharashtra (1).

(4). Learned Public Prosecutor has submitted that as the recovery was made at the instance of the petitioner it is implied that the accused must have knowledge. He has supported the orders passed by the learned courts below.

(5). Head learned counsel for the parties and perused the record.

(6). Sec. 26 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) provides that no confession made by any person whilst he is in the custody of a police officer shall be proved as against such person. Sec. 27 of the Act is the exception to Sec. 26. Sec. 27 of the Act reads as under: —

"27 How much of information received from accused may be proved 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 confession or not, as relates distinctly to the fact thereby discovered, may be proved."

(7). The essential ingredient of Sec. 27 of the Act is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information, and only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and further discovery must relates to the commission of some offence. It is also necessary that at the time of receipt of the information the accused must be in police custody.

(8). In Pohalya Motya Valvi Vs. State of Maharashtra (supra) it has been held that the recovery of a blood stained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. But in the instant case, the petitioner was arrested on 31. 3. 19980 vide Ex. P-6. He gave information vide Ex. P-9 dt. 4.2.80 and recovery was made vide Ex. P-l on the same day. The principal underlying is that a portion of the information given while in custody, which merely explains the material thing discovered is not admissible under S. 27 and cannot be proved, if not distinctly connect with fact discovered. In the case in hand, the theft has not been proved and the two co-accused have been acquitted even when some recoveries were made on their informations. These facts have not been disputed. Learned Public Prosecutor has not been able to show from Ex. P-9 any authorship of concealment. Therefore, as discussed above, recovery at the instance of the petitioner u/s. 27 of the Evidence Act on the basis of information vide Ex.P-9 dt. 4.2.1980 is not sufficient to connect the pet

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