Whether the fact which is already within the knowledge of Investigating Officer can be discovered from the accused on his arrest?
Ans: It is well-known principle of law that ‘what is not covered cannot be discovered’. The word ‘discovery’ has two sheds of the meaning; one is ‘find and detect’ and the other is ‘to uncover or reveal’. ‘Cover’ means a thing which is hidden or concealed or unknown. When such thing becomes known, revealed or exposed, it can be said that the thing covered becomes discovered. It can be also said that a thing is discovered on removal of cover. Therefore, the thing or fact which was already known to a person, it is not required to be discovered by that person.
Hon’ble Gujarat High Court had occasioned to come across with similar issue in case of SARVANSING OMKARSING RATHOD V/S STATE OF GUJARAT – reported in 2009 (1) GLR 245. On appreciation of particular fact, it has been held that “As stated above, the scene of offence panchnama was drawn in presence of panchas on 21.03.2001 i.e. the day on which the incident had happened. The panchnama is at Exhibit 23. It is the case of the prosecution that subsequently by virtue of transfer order, all the accused persons came to be arrested in the month of September 2001 and at the instance of the accused persons, the place of the offence was ‘discovered’ and the panchnama were drawn to that effect, which are produced at Exhibit 29 and Exhibit 36. Panchnama, Exhibit 29 was drawn on dated 06.09.2001 and panchnama, Exhibit 36 was drawn on dated 11.09.2001. Prior to that, scene of offence panchnama was already drawn on 21.03.2001. In the impugned judgment, the learned trial Judge relied upon these two panchnamas, Exhibit 29 and Exhibit 36 as an important piece of evidence connecting all the accused persons with the crime. As per the scheme of Section-27 of the Evidence Act, it is clear that the fact may be said to be discovered when the knowledge of the existence of the fact was for the first time derived from the information furnished by the accused. When the fact has already been known by the police, there cannot be a discovery again of that fact as a result of a statement made by the accused, subsequent to the original discovery. “