Judgment

MITTER, J.:- The appellant along with two other persons were prosecuted on a charge under S. 379/34 of the Indian Penal Code for committing theft of a valuable parcel of diamonds from the person of one Wadilal C. Mehta in a railway train between Masjid Bander and Byculla railway stations on November 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 appellant 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 contention 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.

2. 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 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 he 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 that happening. He was shown a number of photographs kept at the police station and he pointed out therefrom three of the persons resembling the suspects concerned in the theft of his diamonds. The police immediately got busy and on the basis of some information received started looking for the appellant but were not able to trace him that night. The next morning (10th November, 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 apprehended very shortly thereafter. Both of 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 several newspapers in Bombay and at the office of Bombay Samachar Press S.I. Gaud 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 about the recovery of a packet of diamonds. S. I. Gaud learnt from Pawri the name and address of one D. S. Parekh as one of the two persons who had earlier interviewed Pawri for the insertion of the advertisement. 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. Gaud and this was recorded in the presence of panchas. The portion of the statement with which we are concerned reads:

"I will point out one Gaddi alias Ramsingh of