Use of information leading to discovery in evidence given by accused against him.

This is a Revision sought to be preferred against the conviction and sentence by the learned Sub-Magistrate of Udamalpet in C.C. No. 2776 of 1956 which were confirmed by the learned District Magistrate of Coimbatore in C.A. No. 56 of 1957.

On information received apparently that the accused was indulging in illicit distillation activities the Sub-Inspector of Police, P.W. 1, proceeded to the village of the accused, arrested him and enquired him. The accused took the Sub-Inspector to a place in front of his house and pointed out a spot. It was dug up and M.O. 1 a pot with fermented wash kept buried there was taken out. The accused was charged for an offence under section 4(1) (g) of the Madras Prohibition Act. The offence having been proved, the conviction and sentence of a fine of Rs. 80 followed.

The two points taken before me are that when the Sub-Inspector had proceeded to the village on information received apparently that the accused was indulging in illicit distillation activities, the information given by the accused to the Sub-Inspector leading to the discovery would amount to a repetition of the information already received which could not be considered as leading to a discovery coming within the purview of section 27 of the Indian Evidence Act; and secondly that the place wherefrom the pot M.O. 1 was taken out was accessible to the public and therefore exclusive possession of this incriminating article cannot be brought home to the accused.

Point 1.-There is no substance in this point because the information received apparently by the Sub-Inspector and which source he cannot be compelled to disclose was apparently general information of the illegal distillation activities of the accused . The particular discovery made was as a consequence of the information given by the accused and his pointing out the spot wherein he had buried M.O. 1 with fermented wash. But for this accused pointing out the spot the Sub-Inspector would never have been able to effect this recovery of M.O. 1. In fact the accused had all the wide open space of the village to secrete the pot with the fermented wash apart from other imaginable places where such secretion could be made. The Sub-Inspector might even spend weeks without being able to spot out this secret hiding place. In Ramakrishnan Mithanlal Sharma v. The Stale of Bombay1, it was held that where evidence was given by a Police Officer that in consequence of a certain statement made by the accused and at the instance of the accused a tin box was dug out of a mud house and the nature of the statement made or information given by the accused was not sought to be proved (as here) section 27 of the Evidence Act was not attracted and prima facie there was nothing to prevent the evidence being admitted against the accused concerned. Durlav Namasundra v. Emperor2, was referred to. Point 1 fails.

Point 2.-It is quite true that exclusive possession cannot be brought home to an accused if properties are discovered in open places equally accessible to members of the public as a result of the information given by him: The Public Prosecutor v. Pakkiriswami3; Ram Autar v. Emperor4; Amrit Sonar v. Emperor5; Mangalya Ragho Mahar6; Sohan Singh v. Emperor7and Gul Sheru v. Emperor8. But at the same time if the property is found to be so hidden away that no ordinary member of the public could know of its existence there, the fact that it is on that particular person's information and pointing out unaccompanied by any explanation of innocent knowledge the incriminating article was discovered and recovered would lead to the presumption that he is the person who had secreted it there. It unmistakably shows that the accused was privy to the felony: Sher Mohd. v. Emperor9; jamunia Partap Lohar v. Emperor10 pointing out is evidence of conduct under section 8, Indian Evidence Act. Where an accused gives information leading to discovery, and the exact spot where the ornaments are buried is shown and the articles du