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Accused Need Not Be Under 'Formal Arrest' For Purpose Of Statement Given U/S 27 Evidence Act: Madhya Pradesh High Court

Zeeshan Thomas
14 Nov 2022 5:00 AM GMT
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Madhya Pradesh High Court- Principal Seat at Jabalpur

The Madhya Pradesh High Court recently observed that an accused need not be under formal arrest for the purpose of statement given under Section 27 of the Evidence Act.

While deciding a criminal appeal, the division bench of Justices Sujoy Paul and P.C. Gupta noted that the two ingredients to validate a statement under Section 27 are-

  1. Person must be accused of any offence
  2. Person must be in the custody of a police officer; they need not be under formal arrest

Facts of the case were that the Appellant was convicted under Section 302 IPC for murdering his roommate. His conviction was based on circumstantial evidence as well as his statement under Section 27 of the Evidence Act, whereby he had informed the police about the location of the dead body and other incriminating materials. Challenging the guilty verdict, the Appellant preferred an appeal before the Court.

The Appellant submitted that his conviction was primarily based on the theory of "last seen together". It was further pointed out that the Prosecution had also heavily relied on his testimony under Section 27 of the Evidence Act. He argued that his statement under Section 27 was recorded prior to his arrest and therefore the same was inadmissible in the eye of law. It was also contended that the Prosecution had failed to establish motive before the trial court. It was further asserted that there were several contradictions and omissions in the testimonies of witnesses. Thus, it was prayed that his conviction be set aside.

Per contra, the State argued that the trial court had rightly convicted the Appellant by correctly weighing the circumstantial evidence stacked against him.

Examining the submissions of parties and the trial court record, the High Court did not find merit in the contentions put forth by the Appellant. The Court noted that mere absence of motive would not absolve the Appellant, especially when the chain of circumstances was established against him-

In our view, the existence of motive in cases of circumstantial evidence certainly assumes greater significance and importance. However, as a rule of thumb, it cannot be said that in no case, in absence of motive accused can be held guilty. If circumstantial evidence are clear and complete chain of circumstances are established which clearly proves that accused alone had committed the offence, the accused can be held guilty.

With regard to the evidentiary value of Appellant's statement under Section 27 of the Evidence Act, the Court held that it could not be rejected on the ground that he was not formally under arrest. Distinguishing between the terms "arrest" and "custody", the Court opined that the provision requires the person to be in the custody of the police officer. Therefore, the validity of his testimony under Section 27 was upheld-

A simple reading of this section shows that 'a person must be accused of any offence' and that he must be 'in the custody of a police officer' and it is not necessary that such an accused must be under formal arrest. We find support in our view from catena of judgments and a glance of said judgments shows that the question aforesaid is no more res integra.

With the aforesaid observations, the Court noted that the Prosecution had established their case beyond reasonable doubt. It further held that no ingredients were available on which its interference in the decision of the trial court was warranted and accordingly, the appeal was dismissed.

Case Title: ASHUTOSH KAITHWAS VERSUS THE STATE OF MADHYA PRADESH

Case citation: 2022 LiveLaw (MP) 257

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