Rajesh and Another v. The State of MP : A Patently Erroneous Interpretation Of Section 27 Of Evidence Act By Supreme Court

C O N T E N T S

A. The impelling provocation for this article

I chanced to browse through the verdict dated 21-09-2023 of the Supreme Court of India (shown as “REPORTABLE”) in Rajesh and Another v. The State of Madhya Pradesh (Crl. Appeal Nos: 793-794/2022) – 3 Judges – V. R. Gavai, J. B. Pardiwala, Sanjay Kumar – JJ.). The said verdict makes disturbing reading regarding the admissibility of “recovery evidence” under Section 27 of the Indian Evidence Act, 1872. Even after a century and a half of the passing of the Evidence Act, interpretations galore still emanate from the Apex Court of the country. It is in the wake of such a state of affairs that the Union Government is coming out with new penal statutes replacing the time-tested old ones. It is too early to predict the number of rounds of litigative ventures the new legislations may undertake to the Supreme Court keeping the trials pending and adding to the agony of the already disoriented justice-seekers.

B. Wrong verdicts at the top may breed myriads of illegalities at the bottom

2. On reading the aforementioned verdict, one is reminded of the antithesis of the noble plea made by Jesus Christ for the ignorant sinners – “Father, forgive them, for they know not what they do.” Conversely, when the sinners are not ignorant of what they are doing or are at least, capable of discovering what they ought to do, then do they deserve to be forgiven ? This is a question which every Judge should ask himself and it is more so in the case of Judges of the Constitutional Courts, for whatever they say becomes the law of the land. An ill-equipped Judge is a liability to the system of administration of Justice. In the sphere of criminal justice, if unmerited acquittals become the general rule, they tend to lead to a cynical disregard of the law. A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. (Vide Gangadhar Behera v. State of Orissa AIR 2002 SC 3633 = (2002) 8 SCC 381 – Arijit Pasayat, S. B. Sinha - JJ; Shivaji Sahebrao Bobade v. State of Maharashtra AIR 1973 SC 2622 – P. Jaganmohan Reddy, V. R. Krishna Iyer - JJ; State of U. P. v. Anil Singh AIR 1988 SC 1998 - G. L. Oza, K. Jagannatha Shetty - JJ; State of Punjab v. Jagil Singh AIR 1973 SC 2407 = (1974) 3 SCC 277 - H. R. Khanna, A. Alagiriswami - JJ; State of U. P. v. Passu @ Ram Kishore (1983) 3 SCC 502 - E. S. Venkataramiah, V. Balakrishna Eradi - JJ.) The object of criminal trial is to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is the Court’s duty to acquit the accused person when such guilt is not so established. (Vide Harbans Singh v. State of Punjab AIR 1962 SC 439 - P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta - JJ.) The correct approach of a Judge conducting a criminal trial should be that no innocent person should be punished and no guilty person should go unpunished. It is no Judicial heroism to blindly follow the oft repeated saying – “Let hundred guilty men be acquitted but let not one innocent be punished”. It is undesirable to acquit a guilty person and punish an innocent. Any exaggerated devotion to the “benefit of doubt” rule is disservice to the society. (Vide para 6 of Jayalal Sahu v. State of Orissa 1994 Cri.L.J. 2254 = 1994 KHC 2509 (Orissa) – Arijit Pasayat, D. M. Patnaik – JJ.)

C. Pernicious trend of conflicting verdicts from the Apex Court, despite all technological facilities

3. Judges of the Supreme Court are blessed with the latest technology at their fingertips, in addition to the finest library in the country and a couple of hand-picked “law clerks” who are claimed to be academically brilliant. In spite of all these luxuries at the disposal of our privileged Judges how come that there is a disconcertingly increasing trend of conflicting and contradictory verdicts from different Benches of the very same Apex Court of the country ?

4. Justice M. P. Menon, a former Judge of the High Court of Kerala when confronted with two conflicting verdicts rendered by two Division Benches of the High Court and cited before him, exasperatingly referred the matter to be placed before the Chief Justice for an authoritative pronouncement by a larger Bench. In the course of dictating in open Court the reference order, the learned Judge remarked –

“Law may be an ass. But, it should bray in the same voice from the same compound.”

Of course, the Judge was later prevailed upon by his companion Judges to strike off the above remark from his reference order.

D. Chief Justice is no more “the first among equals”, but has heavier duties and wider powers

5. It is high time that a serious attempt is made at the level of the Chief Justice of India to ensure that contradictory and conflicting verdicts should not come out of the Supreme Court and the existing Judge-made imbroglio is rectified at the earliest. This should be treated as a priority item in the “Emerging challenges to the Justice Delivery System” – a topic on which the present Chief Justice made an excellent speech while addressing the International Lawyers’ Conference hosted by the Bar Council of India. Just as “charity” begins at home, “clarity” also can begin at home to ensure “predictability” and “quotability” of the Apex Court verdicts. In this symbiotic joint venture in the quest for truth Lawyers owe greater responsibility.

E. Need for training at the higher echelons of the judiciary

6. “Training”, “updation” and “consequent legal empowerment” should not be confined to the district judiciary alone. On what principle are Judges and lawyers at the higher levels, exempted from training and updation? The so-called “retreat” which Judges of the Constitutional Courts undergo at the National Judicial Academy at Bhopal is nothing but “paid holiday” without any learning at the cutting edges. A perusal of some of the Judgments of the Constitutional Courts shows that there are Judges lacking in elementary knowledge of the dynamic principles of law. To a considerable extent, it is the unintelligent fixation of the rosters by the Chief Justices which is attributable to this malady. The lawyers and their clients cannot be made the “guinea pigs” for the inexperienced Judges to have their trial run. There cannot be a “learners licence” for Judges permanently appointed to the Constitutional Courts. No country can afford to have ignorant Judges setting bad precedents for the whole country to follow. Judges of the Constitutional Courts need not feel it demeaning to undergo refresher courses in law from recognised jurists having practical knowledge and experience in the curial mechanics. Why not the Chief Justice of India direct all State Judicial Academies in the Country to live stream their training sessions for the benefit of the Judges and lawyers throughout the country ?

I had requested the former directors of the Kerala Judicial Academy to videograph and record the lectures of special invitees so that the privilege of such lectures can be made available to the posterity. I do not know whether it has been done .

F. Facts of the present case leading to the verdict in question

7. Let us now get down to the facts of the aforementioned case as are discernible from the verdict itself:

The occurrence in this case took place within the local limits of the Gorakhpur Police station in Madhya Pradesh. A 15 year old boy by name “Ajit Pal @ Bobby” left his home in the night of 26-03-2013 to see “Holika”. Unfortunately, the lad never returned. He was allegedly kidnapped for ransom by three of his neighbours (two brothers by name Om Prakash Yadav and Raja Yadav and the son (Rajesh @ Rakesh Yadav) of one of them). When the demand for ransom was not forthcoming and the kidnappers soon discovered that their demand was leaked out to the Police, the boy was brutally killed by A1 allegedly cutting his throat when A2 held the boy to facilitate A1 to cut the lad’s throat. The exact rank of the 3 accused persons is not discernible from the verdict. But, it is assumed that A1 was Rajesh @ Rakesh Yadav who is the son of one of the two brothers, and the brothers Raja Yadav and Om Prakash Yadav were respectively A2 and A3. Consequent on the apprehension of A1 (Rajesh Yadav) and the recording of his statement by the Gorakhpur Police, the dead body of Bobby, the victim, was recovered from a “well” situated near Khandari Canal at Narmada Nagar. The dead body of the boy was stuffed inside a plastic sack. A few strands of hair follicles were found clenched inside the right fist of the cadaver. During the course of investigation of the case, the above hair strands were forensically examined and identified as that of A1. A blood stained iron knife and a liquor bottle were also recovered at the instance of A1. Other incriminating articles like two mobile phones allegedly used for making the ransom calls, blood stained clothes etc. were recovered at the instance of A2 (Raja Yadhav). Likewise, the blood stained clothes of A3 which he was allegedly wearing at the time of occurrence, were also recovered at the instance of A3. The 3 accused persons were finally charge-sheeted for offences punishable under Section 120 B (criminal conspiracy), Section 364 A (kidnapping for ransom), Section 302 (murder) and Section 201 (causing disappearance of the evidence of the offence) of IPC. After trial, the Sessions Judge convicted all the accused of the aforesaid offences. A1 and A2 were sentenced to death for their conviction under Sections 302 and 364 A IPC. A3 was sentenced to imprisonment for life for the aforesaid offences. Different terms of imprisonment and fine were also imposed on the accused persons for the other offences. All the three accused persons filed appeals before the High Court of Madhya Pradesh. Those appeals were heard along with the “Death Sentence Reference” sent by the trial Judge presumably under Section 366 Cr.P.C. The High Court confirmed the conviction entered and the sentence passed against all the three accused persons. It was aggrieved by the concurrent conviction and sentence that the 3 accused persons further appealed to the Supreme Court.

G. What the Apex Court did in this case

8. The Apex Court has interfered with many of the factual findings concurrently recorded by the Courts below. Even the alleged act of the deceased pulling the hair of A1 in his struggle for life, has been commented upon by comparing the relative heights of the victim and A1 and A2 and by relying upon the alleged statements of the accused and the panch witnesses regarding the manner in which the victim was held by A2 and cut by A1. In the absence of any eye-witness to the occurrence, the statements of the accused or the panch witnesses regarding the manner in which the boy was killed, were totally inadmissible in evidence, being hit by Section 162 (1) Cr.P.C. Likewise, the voluntariness of the statements given by the accused has also been commented upon without any supporting material. In this article, I am not delving into any of those aspects. This article is confined exclusively to the recovery of the dead body and other incriminating objects at the instance of the accused persons and which were sought to be justified by the Prosecution under Section 27 of the Evidence Act.

9. The recovery evidence has been discussed in paragraphs 21 to 32 of the verdict in question. Paragraph 21 of the verdict reads as follows –

“Even if the deposition of DW-2 is discounted, going by the evidence of the prosecution’s own witnesses, viz., PW-2 and PW-4, Rajesh Yadav and Raja Yadav were taken by the police on 28.03.2013 itself and not on 29.03.2013, as claimed by the prosecution. However, their arrests were shown much later. Rajesh Yadav was arrested only on 29.03.2013 at 6:30pm, while Raja Yadav was arrested on 31.03.2013 at 5:40 pm. Om Prakash Yadav was arrested much later on 05.04.2013 at 3:30 pm. Most crucial is the fact that the Investigating Officer (PW-16) chose to examine Rajesh Yadav at 1:45 pm on 29.03.2013 and record his confession without even arresting him, whereby he would have stood ‘accused of an offence’. It is on the strength of this confession that the police and the witnesses allegedly went with Rajesh Yadav to the well, wherefrom the dead body of Ajit Pal was taken out. In effect, Rajesh Yadav was not even ‘accused of any offence’ at the time he made a confession and allegedly helped the police find the dead body. Similarly, Raja Yadav was not arrested by the time his confession was recorded and he was not ‘accused of any offence’ when he allegedly helped the police in seizing his blood-stained clothes. In effect, they were not in the ‘custody of the police’ at that time. In that situation, the vital question that would arise is as to the legal sanctity of the procedure adopted by the police and, in consequence, the value to be attached to the seizures made by them on the strength of such so-called confessions.” (Emphasis supplied by me.)

10. The reasoning adopted in para 21 above is that even though A1 and A2 were taken to the police station from where their statements were recorded, their “formal arrest” was made only subsequently and that at the time when they gave the statements they were not “in the custody of the police” or “accused of an offence”.There seems to be a misconception that a person can be said to be in “police custody” only after he is formally arrested by the police.

11. In paragraph 22 of the verdict in question, after referring to Sections 26 and 27 of the Evidence Act, we find the following observation—

“Therefore, it is essential under Section 27 of the Evidence Act that the person concerned must be ‘accused of an offence’ and being in the ‘custody of a police officer’, he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him. In effect, both aspects, viz, being in ‘the custody of a police officer’ and being ‘accused of an offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act.” (Emphasis supplied by me.)

12. When the accused were admittedly taken by the police to the police station from where they allegedly gave the statements, no sensible person can say that the accused were not in the custody of the police. We will have occasion to advert to the legal position that even “physical custody” is not necessary and it would be sufficient if the accused were under the “ken of surveillance”. The other condition that at that time the person should have been “accused of an offence” insisted by the Bench is clearly wrong.

13. In paragraph 23 of the verdict, the decision in Bodhraj @ Bodha v. State of J & K (2002) 8 SCC 45 - Ruma Pal, Arijit Pasayat – JJ, is referred to without any relevance to the facts of the present case. That decision only highlights the fact that in order to bring the statement of the accused under Section 27 of the Evidence Act, it should be one made while he is in police custody. The facts of the present case clearly show that it was while in “police custody” that all the three accused persons made the confessional statements. It is the verdict in question which makes a wrong assumption that there cannot be a Police custody without formally arresting the accused. In paragraph 24 of the verdict, the Bench has referred to the decision in State of Karnataka v. David Rozario (2002) 7 SCC 728 - U. C. Banerjee, Arijit Pasayat – JJ, to hold that the person giving the information “must be accused of an offence” and “must be in police custody”. With due respect, I am not able to find any observation to the effect that the person should be “accused of an offence” in the above decision. This decision has really highlighted the fact that the exact statement of the accused in his own words (ipsissima verba) should come on record and not the opinion formed by the Police Officer regarding the statement of the accused. There is nothing in this decision which says that at the time of giving the statement, the person should be “accused of an offence” or that police custody can arise only after the arrest of the accused by the police. In paragraph 25 of the present verdict the Bench has referred to the decision in Ashish Jain v. Makrand Singh (2019) 3 SCC 770 - N. V. Ramana, Mohan M. Shantanagoudar – JJ, to observe that a confessional statement of the accused if found to be not voluntary, it would be hit by Article 20 (3) of the Constitution of India. I do not see any relevance to that decision to the case on hand. In the first place, the accused were only disclosing the place of concealment of the dead body and other objects. This is not a “confession” attracting Article 20 (3) of the Constitution. Moreover, in the absence of a concurrent finding otherwise by the Courts below, there was no warrant for concluding that the statements were taken under pressure or duress. The Bench appears to have overlooked the statement of law in paragraph 16 (1) of the eleven Judges Constitution Bench in State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 – 11 Judges - B. P. Sinha - C. J., Imam, S. K. Das, Gajendragadkar, A. K. Sarkar, Subba Rao, Wanchoo, Das Gupta, Dayal, Rajagopala Ayyangar, Mudholkar – JJ, where Chief Justice B. P. Sinha speaking for the Bench observed that simply because an accused person made a statement while in custody, it cannot be said that he was compelled to be a witness against himself. Moreover, in the case on hand the statements only disclosed the place of concealment of the dead body and the other objects and there is no question of any of the accused being compelled to make a “confession”. In paragraph 26 of the verdict in question the decision in Boby v. State of Kerala (2023 LiveLaw (SC) 50) – B. R. Gavai, M. M. Sundresh – JJ, has been referred to for exploring the contours of Section 27 of the Evidence Act as interpreted in Pulukuri Kotayya v. King Emporer AIR 1947 PC 67 - Wright, Simonds, Uthwatt, John Beaumont - JJ. With due respect Boby’s case (Supra) has really gone against the requirements of Section 27 and the verdict in Pulukuri Kotayya. Then comes paragraph 27 of the verdict containing a repetition of the earlier startling observations. The said paragraph 27 reads as follows:-

“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 made a confession. So too would be the case with Raja Yadav and Om Prakash Yadav, as they also were not named as the ‘accused’ in the FIR and were not ‘accused of any offence’ till they were arrested and taken into ‘police custody’, well after the recording of their confessions and the alleged seizures based thereon. Needless to state, this lapse on the part of the police is fatal to the prosecution’s case, as it essentially turned upon the ‘recoveries’ made at the behest of the appellants, purportedly under Section 27 of the Evidence Act.” (Emphasis supplied by me)

14. The above observation in paragraph 27 stems from a misconception that “police custody” can take place only after arrest and that at the time of giving the statement, the person concerned should be “accused of an offence” by his name figuring in the FIR. This part of the verdict in question shows the ignorance of the Court that the words “person accused of an offence” occurring in Section 27 of the Evidence Act do not carry the same meaning as the words “person accused of an offence” occurring in Article 20 (3) of the Constitution of India. The Bench finally criticises the Police for their lapses in not adhering to the law as declared by the Bench.

H. Other observations in the verdict in question

15. In paragraph 28 the decision in Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay (2013) 13 SCC 1 - P. Sathasivam, Dr. B. S. Chauhan – JJ, is referred to for highlighting the legal requirements of a “search and seizure” falling under Section 100 (4) Cr.P.C. One fails to see how the provisions of “search and seizure” are applicable to a recovery falling under Section 27 of the Evidence Act. The relevance of a “Panchanama” can assume importance only in the case of a “search and seizure” from a “closed place” falling under Section 100 (4) Cr.P.C. In paragraph 29 of the verdict the Bench has referred to the decision in Ramanand @ Nandlal Bharti v. State of U. P. 2022 SCC OnLine SC 1396 – 3 Judges – Uday U. Lalit – CJI, S. Raveendra Bhat and J. B. Pardiwala – JJ, wherein the requirement of a “panchanama” and its contents has been highlighted in the context of Section 27 of the Evidence Act. With due respect, the said decision also does not lay down the law correctly. In fact, taking exception to the ruling in Ramanand, I had occasion to write and publish an article in LiveLaw under the caption “SECTION 27 OF THE EVIDENCE ACT – More misconstrued than comprehended”. In paragraph 30 of the present verdict the Bench has referred to the decision in Khet Singh v. Union of India (2002) 4 SCC 380 - R. P. Sethi, K. G. Balakrishnan – JJ, highlighting the procedural illegality in conducting the “search and seizure”. A recovery falling under Section 27 of the Evidence Act does not involve a “search and seizure” from a “closed place” covered by Section 100 (4) Cr.P.C. In paragraph 31 of the verdict in question the procedure adopted by the Police of incorporating in the Panchanama and Recovery Mahazars the opinion of the Panch witnesses regarding the manner of committing the offence, is adversely commented upon. It overlooks the fact that whatever opinion made by the Panch witnesses and incorporated in the Panchanama etc., is hit by Section 162 (1) Cr.P.C. and has no probative value at all. What is admissible in the Panchanama is only what the investigating officer actually did and perceived by his senses at that time. It is well settled that whatever statements made by the witnesses at the time of inquest, whether such statements are appended to the inquest report or incorporated in the words of the Investigating Officer himself will be hit by Section 162 (1) Cr.P.C. The same principle is applicable to Recovery Mahazars as well. In paragraph 33 of the present verdict the Bench has disbelieved the prosecution case of the victim pulling the hair of A1, the assailant by comparing the relative heights of the victim and the accused and by re-constructing the manner of attacking the victim for which there was absolutely no evidence except the inadmissible statements of the accused and the Panch witnesses which are hit by Section 162 (1) Cr.P.C. In paragraph 36 of the verdict in question the Bench after referring to the evidence of the post-mortem doctor holds that the claim of the prosecution that the victim had consumed alcohol (whisky) is not true. It is pertinent to note that consumption of alcohol was not the case of any prosecution witness but it was the case of the accused in their statements which are hit by Section 162 (1) Cr.P.C.

I. Police criticized for their alleged lapses

16. Paragraph 27 of the verdict in question criticises the police for their lapses in the procedure adopted in recording the statements of the accused leading to the recoveries. The above criticism is more out of the mistaken impression of the Court that “police custody” can come into being only after arrest and that at the time of giving the statement, the person concerned should be “accused of an offence” after an FIR is registered against him. This again is an oft noted situation. When a Court records an order of acquittal of the accused, there is a growing tendency in many Courts to cast the entire blame on the police. Here also the same thing happened. But, as already noted it was the ignorance of the Court rather than any lapse on the part of the police which has led to the Court excluding the recovery evidence.

17. In paragraph 37 of the verdict there is a reference to the findings in Justice Malimath Committee Report to hold that the standards of police investigation in this case has been disappointing. In para 38 of the verdict also by referring to the report of the Law Commission of India, the Police is criticised for the unscientific investigation. But it is significant to note that it was the Court which was labouring under a grave mistake and the ignorance of law disclosed in the judgment is graver than the so-called unscientific investigation by the police. In the present case, it was most uncharitable to blame the Police for the procedure adopted while recording the statements of the accused and for effecting the recoveries falling under Section 27 of the Evidence Act.

No presumption that Police are untrustworthy

18. The proverbial distrust in the Police expressed by Courts has been adversely commented upon by the Apex Court as follows:-

“We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.” (Vide para 21 of NCT of Delhi v. Sunil (2001) 1 SCC 652 = 2001 Cri.L.J. 504 – K. T. Thomas, R. P. Sethi – JJ.)

Again the Apex Court held that “police witnesses” should ordinarily be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. (Vide para 8 of Karanjith Singh v. State of Delhi Admn. AIR 2003 SC 1311 = (2003) 5 SCC 291 – S. Rajendra Babu, G. P. Mathur – JJ.)

J. What did the companion Judges do ?

19. When a verdict is rendered by three Judges with one of them alone figuring as the author of the verdict, the companion Judges cannot disown the Judgement either wholly or in part unless any one of them gives a dissenting opinion. It is surprising that the other two Judges have not expressed any disagreement to any part of the Judgement. One of them is the author of Boby (Supra 2023 LiveLaw SC 50) and the other is the author of Ramanand (Supra – 2022 SCC OnLine SC 1396) and Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400 - Dinesh Maheshwari, J.B. Pardiwala - JJ. But, even they have not gone to the extent of holding in their respective verdicts that a person can be said to be in “police custody” only if he has been arrested by the Police or that unless an FIR has been registered against the person treating him as an accused, he cannot be said to be a “person accused of an offence” within the meaning of Section 27. Still those two companion Judges did not take exception to the startling observation made by the author. Such insensitivity by the companion Judges has resulted in a grave travesty of Justice by setting a bad precedent with regard to “recovery evidence” falling under Section 27 of the Evidence Act, Hereafter, it is open to any lawyer in any part of the country to successfully argue even before a Magistrate that the recovery evidence should be eschewed from consideration since the person concerned was yet to be arrested by the Police without which he cannot be said to be in “police custody” and that since an FIR had not been registered against him, he cannot be said to be a “person accused of an offence” within the meaning of Section 27 of the Evidence Act. Who will account for the unmerited acquittals which are sure to take place throughout the length and breadth of the country by following the three Judge Bench verdict in question ?

K. CONTOURS OF SECTION 27 EXAMINED

20. In this article, as already stated, I have only highlighted the infirmities in the approach regarding the “recovery evidence” falling under Section 27 of the Evidence Act. I do not propose to deal with the other infirmities in the verdict in question.

21. Let us now examine the Judicially well settled principles governing “recovery evidence” falling under Section 27 of the Evidence Act.

Any discussion on Section 27 of the Indian Evidence Act, 1872 will be incomplete without reference to Sections 25 and 26. Section 25 of the Evidence Act prohibits proof of “confession” made directly to a police officer by an accused person. Section 26 interdicts proof of a “confession” made by an accused person while he is in the custody of a police officer. Section 27 is an unusual Section which is couched in the form of a “proviso”. This section has always been understood as a proviso to the preceding Sections 25 and 26. (Vide para 433 of Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 – 3 Judges – Dipak Misra, R. Banumathi, Ashok Bhushan - JJ.) Section 27 reads as follows:-

“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 a confession or not, as relates distinctly to the fact thereby discovered, may be proved”.

22. The ingredients of Section 27 are –

(i) A “fact” has been discovered in consequence of “information” received from “a person accused of an offence”.

(ii) The accused person was in “police custody” when he gave the information.

(iii) The discovery of the above fact is “deposed to”.

(iv) What can be proved is only so much of the information as relates distinctly to the fact thereby discovered.

(v) This is irrespective of the question whether such “information” amounts to a confession or not.

(Vide para 434 of Mukesh v. State of NCT of Delhi AIR 2017 SC 2161 - Dipak Misra, R. Banumathi, Ashok Bhushan – JJ.)

23. The conditions necessary for the applicability of Section 27, as explained by the Privy Council in the celebrated Pulukuri Kottaya v. Emperor AIR 1947 PC 67 – Lord Wright, Lord Simonds, Lord Uthwatt, Sir John Beaumont – JJ, and subsequent decisions of the Supreme Court of India, are –

What is “fact” ?

a) A “fact” (about the “place” from where the concealed object was produced and the exclusive knowledge of the accused about that “place”) has been discovered.

(Thus, the “fact discovered” is not the weapon or object discovered, but –

• the place from where the concealed weapon or object was recovered.

AND

• the exclusive knowledge of the accused person regarding the said place of concealment. (Vide para 10 of Pulukuri Kottaya).

Again, in para 12 of Himachal Pradesh Administration v. Om Prakash AIR 1972 SC 975 - P. Jaganmohan Reddy, D. G. Palekar-JJ, it was held that the expression “fact discovered” is not the “dagger” but the “dagger hidden by the accused under a stone which fact was not known to the police”. Again in para 15 of Pandurang Kalu Patil v. State of Maharashtra AIR 2002 SC 733 = (2002) 2 SCC 490 – K. T. Thomas, S. N. Phukan – JJ, it was held that the expression “fact discovered” in Section 27 was certainly not the “gun recovered” but the fact that “A2 had concealed the “gun” behind the old house under a heap of wood” and “the knowledge of A2 regarding the said place of concealment as revealed to the police.”

NOTES BY THE AUTHOR: The judicial indiscipline committed by the Division Bench of the Bombay High Court in venturing to disagree with the ratio in Pulukuri Kottaya which had become the “locus classicus”, was commented upon by the Supreme Court by observing that the Division Bench was violating the principle laid down by Chief Justice M.C. Chagla speaking for the Full Bench in State of Bombay v. Chhaganlal Gangaram AIR 1955 Bombay 1 wherein it was held that so long as the Supreme Court does not take a different view from that of the Privy Council, the decisions of the Privy Council are binding on us and what is binding is not merely the point actually decided but even an opinion which is deliberately and advisedly given by the Privy Council after a careful consideration of all the arguments.

“Information” is about what ?

b) The “fact” (about the place of concealment of the object and the exclusive knowledge of the accused regarding that “place”) was discovered in consequence of “information” received from “a person accused of an offence”. The “information” should be regarding the “fact” (which is not the “weapon”, or “object”, but the “place” where the weapon or object is concealed AND the “knowledge” of the accused regarding that “place”.

“Person accused of an offence” – meaning.

c) The words “person accused of an offence” occurring in Section 27 is only “descriptive of the subsequent status of the person”. In other words, at the time of giving the disclosure statement the person concerned need not be accused of an offence by having an FIR registered against him. This is the essential distinction between Sections 24 to 30 of the Evidence Act and Sections 161 and 162 Cr.P.C. on the one hand and Article 20 (3) of the Constitution of India on the other. Unlike in the case of Section 27, the interdict under Article 20 (3) of the Constitution of India will operate only if a formal FIR or a complaint has been lodged against the person who should actually be accused of an offence. (Vide paras 7 and 18 of State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah – JJ; Paras 14 and 16 of State of Bombay v. Kati Kalu Oghad AIR 1961 SC 1808 = 1961 (2) Cri.L.J. 856 – 11 Judges – B. P. Sinha – CJI, Imam, S. K. Das, Gajendragadkar, A. K. Sarkar, K. Subba Rao, Wanchoo, Das Gupta, Dayal, Rajagopala Ayyangar, Mudholkar – JJ.)

“Custody of the police” – meaning.

d) The accused person at the time of giving the said “information”, was in the custody of a police officer.

(To constitute “custody”, formal arrest of the accused is not necessary. It is enough that the accused is in the “custodial surveillance” of the police. The word “custody” in Section 27 should be understood in a pragmatic sense so as to bring the accused within the ken of surveillance of the police when his movements are restricted. (Vide para 19 of State of A.P. v. Gangula S. Murthy AIR 1997 SC 1588 (A.S. Anand, K.T. Thomas – JJ).

“Deposed to” – meaning.

e) The “fact” (about the place of concealment of the object and the exclusive knowledge of the accused regarding that “place”) so discovered, has been deposed to. (i.e, testified before a Court either by the police officer himself or by any person who witnessed the same). (Vide para 14 of State of Rajasthan v. Bhup Singh (1997) 10 SCC 675 - A. S. Anand, K. T. Thomas - JJ; Para 16 of Anter Singh v. State of Rajasthan AIR 2004 SC 2865 = (2004) 10 SCC 657 - Doraiswamy Raju, Arijit Pasayat - JJ; Para 25 of Amit Singh Bikamsing Thakur v. State of Maharashtra AIR 2007 SC 676 = (2007) 2 SCC 310 - Arijit Pasayat, Lokeshwar Singh Panta - JJ.)

“So much of the information which distinctly relates to the “fact” thereby discovered” – meaning.

f) When once, the “fact” has been discovered, then what is admissible in evidence or what can be proved before Court, is only “so much of the information which distinctly relates to the fact” (about the place of concealment of the object and the exclusive knowledge of the accused regarding that place and which was until then unknown to the police) thereby discovered.

(This excludes any statement by the accused about the “previous user” or the “past history” of the object, which is not related to its discovery, i.e, the accused is not expected to say that he had previously used the object for committing the offence or that the object was the subject-matter of any offence committed by him etc.). (Vide paras 10 and 14 of Pulukuri Kottaya).

Accordingly, if the accused were to say “The dagger (with which I killed Rahman) has been hidden by me in the cowshed of my neighbour, Antony”, the words “with which I killed Rahman” are inadmissible being indicative of “previous user” or “past history” of the weapon, namely, dagger.

Similarly, in the statement of the accused “if I am taken there, I will show the spot where we committed murder…….” “where we committed murder” was held to be outside the purview of Section 27. (Vide Venkatesh @ Chandra v. State of Karnataka 2022 KHC 6440 (SC) - Uday U. Lalit, P.S. Narasimha – JJ ).

The tendency on the part of prosecuting agencies getting recorded the entire statement including the inadmissible portion, was deprecated and it was directed that such a practice must immediately be stopped. (Vide Venkatesh @ Chandra (Supra – 2022 KHC 6440 (SC).

Recovery evidence – whether “substantive” or “corroborative” ?

g) In the majority of cases, what is disclosed by the accused is only the “place of concealment” of the object which may be a dead body, weapon, or blood stained cloth. Such a disclosure statement by itself does not prove any offence. If what is recovered is a “weapon” it is only a corroborative piece of evidence and not a substantive piece of evidence. Substantive evidence is evidence which can stand on its own without any supporting evidence. In a case where the place of concealment of the weapon alone has been proved consequent on the disclosure statement of the accused, the prosecution will have to further show that the said “weapon” recovered pursuant to the disclosure statement of the accused, was used by the accused person for committing the alleged offence. This has been highlighted towards the end of paragraph 11 of Pulukuri Kottaya (Supra – AIR 1947 PC 67).

The observation in para 15 of Pandurang Kalu Patil (Supra – AIR 2002 SC 733), that it was the same “gun” recovered on the strength of the disclosure statement of A2, which was used by A2 for firing at PW2, shows the independent proof of the user of the weapon recovered at the instance of A2.

“Whether it amounts to a “confession” or not” – meaning.

h) The words “whether it (information) amounts to a confession or not” occurring in Section 27 can apply only to those cases where “possession of the object” or “concealment of the object” itself is an offence and not to any other act of the accused confessing the commission of the offence. (See towards the end of para 11 of Pulukuri Kottaya)

(Thus, in a case where the accused says that he has hidden “an unlicensed firearm” or a “narcotic drug” at a place revealed by him, then even though his admission of his possession of the firearm or the contraband substance itself amounts to an offence, such admission amounting to a “confession” cannot be excluded from the disclosure of the place of concealment of the same. In fact, this is the solitary situation in which the recovery evidence itself may attain the status of substantive evidence which can stand alone by itself without any supporting or corroborative evidence.)

It is in this background that Pulukuri Kottaya has been followed by the Supreme Court of India in ever so many decisions.

(Vide –

• Ramkishan Mithanlal Sharma v. State of Bombay AIR 1955 SC 105 = 1955 Cri.L.J. 196 – 3 Judges (N. H. Bhagwati; B. Jagannadhadas, T. L. Venkatarama Ayyar – JJ );
• K. Chinnaswami Reddy v. State of A.P AIR 1962 SC 1788 – 3 judges (B. P. Sinha, CJI , K. N. Wanchoo; J. C. Shah. – JJ );
• Prabhoo v. State of U.P AIR 1963 SC 1113 – 3 Judges (S. K. Das, A. K. Sarkar, M. Hidayatullah – JJ );
• Jaffer Hussain Dastagir v. State of Maharashtra - 1969 (2) SCC 872 = AIR 1970 SC 1934 – 3 Judges (Sikri, Mitter, Reddy – JJ ). (The principle has been lucidly explained in this decision);
• Paras 12 & 13 of Himachal Pradesh Administration v. Om Prakash – AIR 1972 SC 975 (P. Jaganmohan Reddy, D. G. Palekar – JJ ). (Held that the “fact discovered” is not the dagger but the dagger hidden under a stone which was not known to the Police);
• Mohd Inayatullah v. State of Maharashtra – AIR 1976 SC 483 (P. N. Bhagwati, R. S. Sarkaria– JJ );
• Dhananjoy Chatterjee v. State of W.B (1994) 2 SCC 220 (Dr. A. S. Anand, N. P. Singh – JJ );
• Shamshuk Kanwar v. State of U.P. - 1995 (4) SCC 430 (M. M. Punchhi, K. Jayachandra Reddy – JJ );
• State of Maharashtra v. Damu (2000) 6 SCC 269 (K. T. Thomas, D. P. Mohapatra – JJ );
• Pandurang Kalu Patil v. State of Maharashtra AIR 2002 SC 733 = (2002) 2 SCC 490 (K. T. Thomas, S. N. Phukan – JJ);
• Swamy Shradhananda v. State of Karnataka - AIR 2007 S.C. 2531 (Markandey Katju, S. B. Sinha – JJ );
• Amitsingh Bhikamsingh Thakur v. State of Maharashtra - (2007) 2 SCC 310 (Arijit Pasayat, Lokeshwar Singh Panta – JJ );
• Anter Singh v. State of Rajasthan - (2004) 10 SCC 657 = AIR 2004 SC 2865 (Doraiswamy Raju, Arijit Pasayat – JJ );
• Mustkeem v. State of Rajasthan (2011) 11 SCC 724 (Asok Kumar Ganguly, Deepak Verma – JJ );
• Para 30 of Pawan Kumar v. State of U.P. (2015) 7 SCC 148 = AIR 2015 SC 2050 (S. J. Mukhopadhaya, N. V. Ramana – JJ )
• Raja @ Rajinder v. State of Haryana (2015) 11 SCC 43 (Dipak Misra, N. V. Ramana – JJ )
• Harpal Singh @ Chhota v. State of Punjab AIR 2016 SC 5389 (A. K. Sikri, Amitawa Roy – JJ )
• Brij Lal v. State of Rajasthan AIR 2016 SC 3875 (J.S. Khehar, Arun Mishra – JJ )
• Manoj v. State of Madhya Pradesh 2022 SCC OnLine SC 677 = 2022 KHC 6597 (Uday U. Lalit, S. Raveendra Bhat – JJ ).

Likewise, merely because the property is described as “looted property” in the confessional statement, it would not render the statement inadmissible. (Vide para 14 of Sanjay @ Kaka v. State (NCT of Delhi) AIR 2001 SC 979 - K. T. Thomas, R. P. Sethi – JJ).

L. Other settled legal propositions regarding Section 27

24. The following propositions of law are well settled: -

Statement need not be in the presence of “independent witnesses”.

1. Section 27 does not lay down that the statement made to a police officer should be in the presence of “independent witnesses”. (Vide para 21 of Praveen Kumar v. State of Karnataka (2003) 12 SCC 199 (N. Santosh Hegde; B. P. Singh – JJ).

Section 27 does not lay down that the statement made to a Police Officer should be in the presence of “independent witnesses”. (Vide para 21 of Praveen Kumar v. State of Karnataka (2003) 12 SCC 199 – N. Santhosh Hegde, B. P. Singh – JJ.)

No requirement that “independent witnesses” should be present or should overhear the disclosure statement.

2. It is not necessary that witnesses should be present when the accused is interrogated by the investigation officer. Disclosure statement of the accused need not be made in the presence of witnesses who need not also overhear the same. (Vide para 25 of State of Himachal Pradesh v. Jeet Singh (1999) 4 SCC 370 = AIR 1999 SC 1293 (K. T. Thomas, S. S. Mohammed Quadri – JJ).

It is a fallacious impression that when recovery is effected pursuant to any statement made by the accused, the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. (Vide para 20 of State Government of NCT of Delhi v. Sunil (2001) 1 SCC 652 = 2001 Cri.L.J. 504 – K. T. Thomas, R. P. Sethi.)

In para 438 of Mukesh v. State of NCT of Delhi AIR 2017 SC 2161 (Dipak Misra, R. Banumathi, Ashok Bhushan – JJ) it was observed as follows:-

“need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case”.

Relying on the verdict in State Government of NCT of Delhi v. Sunil (Supra), the three Judges Bench in Mukesh (Supra) held in paragraph 439 that when recovery is made pursuant to the statement of the accused, the seizure memo prepared by the Investigating Officer need not be mandatorily attested by independent witnesses.

Even failure to record the information and failure to examine public witnesses, not fatal.

3. Even failure to record the information given by the accused and failure to examine public witnesses, are not fatal to the prosecution. (Vide paras 71 and 72 of Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420 (Dr. A. S. Anand, Faizan Uddin – JJ ).

What is important is the credibility of the evidence of the I.O.

4. What is really important is the credibility of the evidence of the investigating officer. (Vide para 69 of Mohd. Arif @ Ashfaq v. State (NCT of Delhi) (2011) 13 SCC 621 (V. S. Sirpurkar, T. S. Thakur – JJ ); para 9 of Himachal Pradesh Administration v. Om Prakash – AIR 1972 SC 975 (P. Jaganmohan Reddy, D. G. Palekar – JJ )

Accused need not himself lead the police party to the spot.

5. It is not a requirement of law that the accused should himself lead the police party to the spot and take out the weapon. It is enough if the accused discloses to the investigating officer such information which leads to the discovery of the thing sold or hidden or kept with him which the police did not know until then. (vide –

• Para 24 of Reveendran and Others v. State – 1989 (2) KLJ 534 (Kerala) (DB) (S. Padmanabhan, P. K. Shamsuddin – JJ );
• Para 24 of Himachal Pradesh Administration v. Om Prakash - AIR 1972 SC 975 = 1972 SCC (Crl.) 88 (P. Jaganmohan Reddy, D. G. Palekar – JJ );
• Bahadul v. State of Orissa - 1979 (4) SCC 346 : 1979 SCC (Cri) 982 : AIR 1979 SC 1262 : 1979 Cri.L.J 1075 (S. Murtaza Fazl Ali, A. D. Koshal – JJ );
• Prakash Chand v. State (Delhi Admn.) - 1979 (3) SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400 : 1979 Cri.L.J 329 (R. S. Sarkaria, O. Chinnappa Reddy – JJ );
• Para 142 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 (P. Venkatarama Reddi, P. P. Naolekar – JJ ).

NOTES BY THE AUTHOR:- This is the reason why it has been held that the person who recovered the incriminating object need not be the identical person to whom the disclosure statement was made. (Vide Sekharan v. State of Kerala - 1979 KLT 337 = 1979 (1) ILR (Kerala) 156 (Narayana Pillai, Kader – JJ ) and Para 57 of Rijo v. State of Kerala - 2009 (2) KLD 803 (K. Balakrishnan Nair, P. Bhavadasan – JJ ).

But there may be cases like Karan Singh v. State of U.P (1973) 3 SCC 662 = AIR 1973 SC 1385 (A. Alagiriswami, I. D. Dua, C. A. Vaidialingam – JJ ) where the accused merely says that he will show the place where the knife is hidden and then take the police party to that place. Again in paragraph 11 Lachhman Singh v. State AIR 1952 SC 167 = 1952 Cri.L.J. 863 (Saiyid Fazl Ali, Vivian Bose – JJ ), after 3 of the accused persons made a confession to the police to the effect that the dead bodies of the two brothers could be recovered from Sakhinala, a stream running through several miles, one of them had led the police party to the spot from where bloodstained earth and the trunk of one of the dead persons were recovered, it was held that it would fall under Section 27.

The conduct of pointing out the weapon etc. may fall u/s 8 of Evidence Act.

6. Even in a case where the accused made a confessional statement about the place of concealment of the object, either antecedent or contemporaneous to the recovery of the object admissible under Section 27, his conduct in taking the police to place of concealment and pointing out the weapon will fall under Section 8 of the Evidence Act as a conduct. (Vide –

• Prakash Chand v. State - (Delhi Administration) - AIR 1979 SC 400 (R. S. Sarkaria, O. Chinnappa Reddy – JJ );
• Zwinglee Ariel v. State of M.P AIR 1954 SC 15 – 3 Judges (Mehr Chand Mahajan, S. R. Das, N. H. Bhagwati – JJ );
• Rao Shiv Bahadur Singh v. State of Vindya Pradesh AIR 1954 SC 322 - 3 Judges (N. H. Bhagwati, B. Jagannadhadas, T. L. Venkatarama Ayyar – JJ );
• State of Madras v. Vaidyanatha Iyer AIR 1958 SC 61 – 3 Judges (B. P. Sinha, P. Govinda Menon, J. L. Kapur – JJ );
• State (NCT of Delhi) v. Sunil and Another - 2001 Cri.L.J. 504, 2000 (7) SCALE 692 (K. T. Thomas, R. P. Sethi – JJ );
• H. P. Administration v. Om Prakash - 1972 (1)SCC 249 : 1972 SCC (Cri) 88 : AIR 1972 SC 975 (P. Jaganmohan Reddy, D. G. Palekar – JJ );
• Ghanashyam Das v. State of Assam (2005) 13 SCC 387 (P. Venkatarama Reddi, D. M. Dharmadhikari – JJ );
• Bahadul v. State of Orissa - AIR 1979 SC 1262 (S. Murtaza Fazl Ali, A. D. Koshal – JJ );
• Reveendran & Others v. State - 1989 (2) KLJ 534 (S. Padmanabhan, P. K. Shamsuddin – JJ ).

Relevance of “authorship of concealment”.

7. Even though the “authorship of concealment” may not be a condition precedent to bring the disclosure statement of the accused within the ambit of Section 27 of the Evidence Act as held in Ajayan@Baby v. State of Kerala 2011 (1) KLT 8 (Kerala – FB) – J. Chelameswar – CJ, Thomas P. Joseph, P. R. Ramachandra Menon, the fact that it was the accused himself who had hidden the object thereby becoming the author of concealment, goes a long way to connect him with the offence. See Pohalya Motya Valvi v. State of Maharashtra - 1980 (1) SCC 530 (D. A. Desai, R. S. Pathak – JJ ). See also –

• Jaffer Husain Dastagir v. The State of Maharashtra - 1970 SC 1934 (3 Judges) (Sikri, Mitter, Reddy – JJ );
• Dudh Nath Pandey v. State of U.P. - 1983 (2) SCC 305 = AIR 1981 SC 911 (Y. V. Chandrachud CJI , A. P. Sen – JJ ) and
• Sankara Narayanan v. State of Kerala - 2006 (3) KLT 429 = 2006 (2) ILR Kerala 603 (V. K. Bali, CJI, J. B. Koshy – JJ );
• Mahabir Biswas and Another v. State of West Bengal - 1995 (2) SCC 25 (3 Judges) (M. M. Punchhi, M. K. Mukherjee, K. Jayachandra Reddy – JJ );
• Golden Satheesan & Others v. State of Kerala - 2012 (1) KHC (SN) 27 (DB) (V. Ramkumar, P. Q. Barkath Ali – JJ ) (The Full Bench decision of the Kerala High Court in Ajayan @ Baby v. State of Kerala 2011 (1) KLT 8 – J. Chelameswar – CJ, Thomas P. Joseph, P. R. Ramachandra Menon, explained.;
• The very same Judge who authored the Full Bench decision in Ajayan @ Baby (Supra - 2011 (1) KLT 8) had himself held in para 11 of Ramachandran v. State of Kerala 2008 (4) KLT 464 that it is the duty of the I.O. while giving evidence, to state about the “authorship of concealment” in the disclosure statement of the accused and if the I.O. fails in the said duty, the Public Prosecutor should elicit it from the I.O. and if the P.P. also fails in that duty, the Court has a duty under Section 165 of the Evidence Act to elicit the above aspect from the I.O.
• Paras 67 and 68 of Ramanand @ Nandlal Bharti 2022 SCC OnLine SC 1396 (Uday U. Lalit CJI, S. Raveendra Bhat, J. B. Pardiwala – JJ ).

Recovery in the course of investigation of another case, permissible.

8. There can be the recovery of an incriminating object during the course of investigation of another case. (See State of Rajasthan v. Bhup Singh – 1997 (10) SCC 675 (A. S. Anand, K. T. Thomas – JJ ); Para 37 of Mohan Lal v. State of Rajasthan (2015) 6 SCC 222 = AIR 2015 SC 2098 (Dipak Misra, S. A. Bobde – JJ ).

Even if custody was obtained illegally, recovery evidence will be valid.

9. A confession by the accused revealing the place of concealment of the object resulting in the recovery of the object, does not become inadmissible merely for the reason that custody of the accused was obtained under an illegal order of remand. (Vide para 15 of State Rep. by Inspector of Police v. N. M. T. Joy Immaculate AIR 2004 SC 2282 (S. Rajendra Babu, CJI, Dr. AR. Lakshmanan, G. P. Mathur).

Section 27 does not involve “search & seizure” falling u/s 100 (4) Cr.P.C.

10. The witnesses to the recovery of a weapon effected consequent on the disclosure statement made by the accused, need not be “independent and respectable inhabitants of the locality” as enjoined by Section 100 (4) Cr.P.C, since the recovery of an object falling under Section 27 of the Evidence Act is not similar to a search contemplated by Sections 100 or 165 Cr.P.C. (Vide para 19 of State (NCT of Delhi) v. Sunil (2001) 1 SCC 652 (K.T. Thomas, R.P. Sethi – JJ ).

Weapon not recovered from the spot disclosed by the accused due to an intervening act in the meanwhile, whether will u/s 27

11. Supposing the police party on proceeding to the spot mentioned by the accused in his disclosure statement, does not find the weapon there, but investigation revealed that a small girl had picked up the weapon from the spot mentioned by the accused and had given it to another person. On questioning that person he confirmed the statement of the girl and produced the weapon from his custody. Held that the “disclosure statement” and the subsequent recovery of the weapon would fall under Section 27. (Vide paras 20 and 21 of Narayana Pillai Vasudevan Pillai v. State of Kerala ILR 1968 (2) Kerala 303 = 1968 Cri.L.J. 1362 – T. C. Raghavan, M. U. Issac - JJ; Para 22 of Raveendran v. State 1989 (2) KLJ 534 – S. Padmanabhan, P. K. Shamsuddin - JJ; Chandradas Swami v. State of Gujarat AIR 2017 SC 1761 = (2017) 7 SCC 177 - Kurian Joseph, A. M. Khanwilkar - JJ.)

NOTES BY THE AUTHOR: In paragraph 23 of Raveendran (Supra – 1989 (2) KLJ 534) there is an observation that even if the object is not actually recovered but the information is found to be correct, it amounts to discovery of the “fact” provided it is the direct follow up of the “information”. With due respect, the above observation which is really an obiter dictum, is an overstatement of the law. The recovery evidence under Section 27 will not be complete unless the object is produced. This aspect of the matter is considered under the next point (Point No: 12).

Production of object consequent on the disclosure statement, is a must.

12. There cannot be “discovery of a fact” under Section 27 of the Evidence Act unless the “object” is produced. See paras 20 and 21 of Narayana Pillai Vasudevan Pillai (Supra - 1968 Cri.L.J. 1362) (DB); Para 13 of H.P. Administration v. Om Prakash AIR 1972 SC 975 = (1972) 1 SCC 249 - P. Jaganmohan Reddy, D. G. Palekar - JJ; Para 39 of Mahabir Mandal v. State of Bihar AIR 1972 SC 1331 – 3 Judges - J. M. Shelat, R. Khanna, G. K. Mitter - JJ; Para 37 of State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1691 – K. T. Thomas, D. P. Mohapatra – JJ; Chandradas Swami (Supra - AIR 2017 SC 1761).

M. Two Illustrations discussed for better comprehension

25. We will now discuss two Illustrations for the sake of comprehending the law better:

Illustration A

The accused, while in the custody of a police officer says –

“I have hidden the dagger beneath the tiles of the cowshed of my neighbour Antony. I can show you the dagger which is so hidden.”

Thereafter, the police officer, on the strength of the above information given by the accused goes to the cowshed of Antony, the neighbour of the accused and takes out the dagger hidden beneath the tiles of the cowshed.

Illustration B

The accused, while in the custody of a police officer says –

“I have hidden the dagger in a secret place. If I am taken there, I shall show you the place and the dagger hidden there.”

Thereafter, the accused leads the police party to the cowshed of his neighbour Antony and takes out the dagger hidden beneath the tiles of the cowshed.

26. The distinction between Illustration A and Illustration B is this:

In Illustration A the accused person, in his disclosure statement given while in the custody of the police officer, has revealed the place of concealment of the weapon. The police officer who was in the dark about the place of concealment of the weapon until the accused revealed the same was able to find out the weapon from the information supplied by the accused and the officer could himself recover the weapon without any further help, co-operation or assistance by the accused. In other words, in Illustration A, the “information” given by the accused while in the custody of the police officer, revealed a “fact discovered” within the meaning of Section 27.

In Illustration B, the accused in his statement given while in the custody of the police officer, has not revealed the place of concealment of the weapon. Until the accused led the police party to the place of concealment of the weapon and took out the weapon, that place continued to be a secret for the police officer. In other words, in Illustration B, the accused did not, while he was in the custody of the police officer, give any information regarding the “fact discovered” within the meaning of Section 27.

M.1 My answer to Illustrations A and B

27. The classic interpretation of Sec 27 of the Evidence Act by Sir John Beaumont speaking for the Privy Council in the celebrated Pulukuri Kottaya V. Emperor AIR 1947 P.C 67 is to the effect that -

"Fact discovered " is not the object produced but it embraces the "place" from where the object is produced and the “knowledge” of the accused regarding the said place. "

Section 27 says that the "fact discovered " should be there in the "information" received from an accused person while in the custody of the police officer. It is this "information" (already given by the accused to the police officer while in custody) which gets confirmed by the subsequent recovery. It is not a requirement of law that the accused should himself lead the police party to the place of concealment of the “weapon or object” and take it out of the hidden place. (Vide para 24 of Raveendran v. State 1989 (2) KLJ 534 (Kerala – DB) – S. Padmanabhan, P. K. Shamsuddin – JJ; Para 142 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 (Parliament attack case) - P. Venkatarama Reddy, P. P. Naolekar – JJ. Hence, Illustration A clearly falls under Section 27 of the Evidence Act.

But, in Illustration B, the "information" given by the accused does not reveal the "place" where the incriminating object is concealed by him. Hence, there is no "information" given about the "fact discovered". On the contrary, the accused is reserving to himself the "fact discovered" till he leads the police party to the "place" of concealment of the weapon and then takes out the weapon from its hiding place.

Hence, Illustration B does not fall under Section 27 of the Evidence Act. At best, the action of the accused in Illustration B may amount to a "conduct" provable under Section 8 of the Evidence Act.

N. The relevance of a “Panchanama” or a “Mahazar” in the context of recovery evidence

28. Section 27 does not say that the police officer in whose custody the accused person gives an “information” should prepare a “panchanama” or a “mahazar” at all or that the investigating officer should call two independent persons to witness the giving of the “information” (disclosure statement) by the accused or to witness the actual recovery of the incriminating article. It is only a rule of caution followed by investigating police officers. The very fact that the interdict under Section 162 (1) Cr.P.C against the user of any statement made by a person (including a suspect) to a police officer during the course of investigation is expressly taken away by Section 162 (2) Cr.P.C in the case of a recovery falling under Section 27 of the Evidence Act, itself shows that the police officer should be able to depose before Court the “fact” disclosed by the accused resulting in the recovery of the incriminating article. A police officer, during his official career, may have to conduct innumerable investigations. It is humanly impossible for him to remember the facts and circumstances of each and every investigation conducted by him. That is the reason why police officers, by way of abundant caution, prepare contemporaneous documents called “recovery panchanama” or “seizure mahazar” incorporating the various steps taken by them to unearth the “fact discovered” in each and every case. Since such recovery is not the result of a “search and seizure” from a “closed place” falling under Sections 100 and 165 Cr.P.C, the mandate of those provisions requiring “independent and respectable inhabitants of the locality” to witness such “search and seizure”, does not apply. While a “search and seizure” from a “closed place” falling under Section 100 (4) Cr.P.C. should natuarally have a “Panchanama” to which there should be “independent and respectable inhabitants of the locality”, a recovery falling under Section 27 of the Evidence Act does not involve any “search and seizure” from a “closed place” requiring any “Panchanama” or “Mahazar” as will be seen hereafter. As already stated, Investigating Officers effecting a recovery under Section 27 of the Evidence Act prepare a Panchanama not out of any statutory prescription but by way of abundant caution so that while giving evidence before the Trial Court after months or years of such a recovery, they can peruse such contemporaneous records for the purpose of refreshing their memory under Section 159 of the Evidence Act. See in this connection State of Karnataka v. Yarappa Reddy AIR 2000 SC 185 = (1999) 8 SCC 715 – K. T. Thomas, A. P. Misra – JJ.

In the absence of a statutory prescription for a Panchanama, much less, an insistence of even the presence of independent witnesses, the following decisions obligating the police to prepare a Panchanama with independent witnesses etc. cannot be taken as the correct proposition of law –

1. Ramanand @ Nandlal Bharti 2022 SCC OnLine SC 1396 (Uday U. Lalit CJI, S. Raveendra Bhat, J. B. Pardiwala – JJ ).
2. Subramanya v. State of Karnataka 2022 SCC OnLine SC 1400 (Uday U. Lalit CJI, J. B. Pardiwala – JJ ).
3. Boby v. State of Kerala 2023 LiveLaw (SC) 50 (B. R. Gavai, M. M. Sundresh.)

Apart from the fact that the view taken in the above decisions do not have any statutory backing, it was contrary to the binding precedents already holding the field.

O. Certain fundamental rules regarding “Judgment writing”

29. Some fundamental rules regarding “Judgment writing” need to be emphasised –

a) Whatever be the level of the Judges in the hierarchy of Courts, the degree of solemnity or divinity of the Judicial function is the same. One is not superior to the other.

b) Duty to give “reasons” is an integral pre-requisite of every Judicial verdict. Therefore, when a Court, after trial, finds a person “guilty of an offence charged” and passes a sentence against him, he (the accused) and the society-at-large (including every reader of the verdict) should know why and on what grounds the accused was found guilty and a sentence passed against him.

c) Similarly, when a Court finds an accused person “not guilty of the offence charged” and sets him at liberty, the prosecution and the society-at-large (including every reader of the verdict) should know why and on what grounds the accused was acquitted.

d) A reversing Judgment should deal with each and every aspect of the matter considered under the Judgment which was reversed.

e) Instead of regurgitating the oft quoted rules of circumstantial evidence, every Judgment resting on circumstantial evidence should enumerate the various circumstance which constitute a complete chain enabling all the stake-holders and the superior Courts to evaluate those circumstances.

P. CONCLUSION

30. This is not an exhaustive article on Section 27 of the Evidence Act which has many other nuances which are not relevant for the present purpose. It is hoped that a conscious effort will be made to ensure consistency in the verdicts of the Supreme Court which lays down the law of the land. The present verdict is a crowning example which demonstrates that there is no magic in showing a Judgment as “REPORTABLE”. Such judgments also may lay down bad law. We have the glaring example of Jackaran Singh v. State of Punjab AIR 1995 SC 2345 = 1995 Cri.L.J. 3992 – Dr. A. S. Anand, M. K. Mukherjee – JJ. The erroneous observations in that verdict resulted in unmerited acquittals by the criminal courts at every level. Even the Order dated 25-04-1996 whereby the Bench suo motu reviewed the Judgment expunging the objectionable observations, was not reported in any of the law journals except in 1998 Judicial Vision (1) Kerala 1 (Published by the Directorate of Training, Kerala). See the verdict of Justice Karpakavinayagam of the Madras High Court in Natarajan v. Union Territory of Pondicherry 2003 Cri.L.J. 2372. Since in criminal matters, the “life and death” of the persons arrayed as the accused are involved, I am sure that every endeavour will be made to nullify the discordant verdicts at the earliest so that there is reasonable “predictability” and “quotability” of the binding decisions of the Apex Court. Otherwise, such wrong precedents may endanger the concept of “fair trial” resulting in unmerited acquittals throughout the length and breadth of the country.

Author is Former Judge, High Court of Kerala

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