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person in custody that “I will produce a knife concealed in the roof of my house”
does not lead to the discovery of a knife; as knives were discovered many years
ago, but if it leads to the discovery of the fact that a knife is concealed in the
house of the informant to his knowledge and if the knife is proved to have been
used in the commission of the offence, the fact discovered is very relevant.
Noting this principle, this Court observed that Section 27 of the Evidence Act
requires that the ‘fact discovered’ embraces the place from which the object is
produced and the knowledge of the ‘accused’ as to this and the information
given must relate distinctly to the said fact.
27.
In the case on hand, though Rajesh Yadav was taken to the police
station, be it on 29.03.2013 or even earlier, he could not be said to be in ‘police
custody’ till he was arrested at 18:30 hours on 29.03.2013, as he did not figure
as an ‘accused’ in the FIR and was not ‘accused of any offence’ till his arrest.
Therefore, it was his arrest which resulted in actual ‘police custody’, and the
confession made by him, before such arrest and prior to his being ‘accused of
any offence’, would be directly hit by Section 26 of the Evidence Act and there
is no possibility of applying the exception under Section 27 to any information
given by him in the course of such confession, even if it may have led to the
discovery of any fact. In consequence, the purported discovery of the dead
body, the murder weapon and the other material objects, even if it was at the
behest of Rajesh Yadav, cannot be proved against him, as he was not ‘accused
of any offence’ and was not in ‘police custody’ at the point of time he allegedly
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