“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-IX]

Q.41 The accused in a murder case when arrested by the police makes the following statement:- “That knife is concealed beneath the tiles of the cowshed of my neighbor Antony. If I am taken there I can take out the same and produce before you” Does not the above statement contain the element of criminality tending to connect the accused with the crime ? Ans. No. The above statement only shows that the accused is only aware of the place of concealment of the weapon. When he mentions about the place of concealment of the weapon, there could be 3 possibilities, namely,i) He himself would have concealed the weapon, orii) He would have seen somebody concealing it, oriii) He would have been told by another that the weapon was concealed there. (Vide – Para 21 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; Para 26 of State of Maharashtra v. Suresh (2000) 1 SCC 471 – K. T. Thomas, R. P. Sethi – JJ.) In Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra 2022 SCC OnLine SC 883 = 2022 KHC 6709 – Surya Kant, J. B. Pardiwala – JJ, it was observed in para 45 as follows:- “What emerges from the evidence of the PW - 4 & PW - 10 is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle”. This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.” But, if the accused declines to tell the Police or the Court his knowledge about the concealment of the weapon, the Court may presume that he himself had concealed it. This is because, the matter having been within his exclusive knowledge, should have been revealed by him. (Vide- State of Maharastra v. Suresh (2000) 1 SCC 471 = 2000 SCC Cri. 263 - G. T. Nanavati, K. T. Thomas - JJ; Para 9 of Dharmendra v. State of U.P. AIR 2017 SC 566 = 2017 Cri.L.J. 1551 – A. K. Sikri, Amitava Roy – JJ – Even though the disclosure statement of Dharmendra (one of the 3 accused persons) did not disclose the authorship of concealment of the weapons of crime, from the statement of the witnesses to the effect that after committing the crime the 3 accused persons fled away in the same direction, the Supreme Court inferred authorship of concealment in the appellant, Dharmendra.) NOTES BY THE AUTHOR: In Suresh (Supra – (2000) 1 SCC 471) the accused did not say that he had himself hidden the weapon there. Unless the authorship of concealment could be attributed to the accused it would be unsafe to connect the accused with the crime. Recovery of the weapon becomes incriminating not because of its recovery at the instance of the accused but because of the element of criminality tending to connect the accused with the crime being founded on the authorship of concealment, namely, that the accused who gave the information leading to its discovery was himself the person who concealed the weapon. 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 – AIR 1970 SC 1934 (3 Judges) - Sikri, Mitter, Reddy - JJ; State of Uttar Pradesh v. Jageshwar and Others 1983 (2) SCC 305 - Y. V. Chandrachud - CJI, V. D. Tulzapurkar - J; Dudh Nath Pandey v. State of U.P. - AIR 1981 SC 911 - Y. V. Chandrachud - CJI, A. P. Sen - J and Sankara Narayanan v. State of Kerala - 2006 (3) KLT 429 = 2006 (2) ILR 603 (Kerala) - V. K. Bali – CJI, J. B. Koshy – J;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. Paras 67 and 68 of Ramanand @ Nandlal Bharti 2022 SCC OnLine SC 1396 - Uday Umesh Lalit, S. Ravindra Bhat, Bela M. Trivedi - JJ. In George @ Kunju v. State – 2005 (4) KLT (SN) 85 (Page 62) – K. Padmanabhan Nair, V. Ramkumar – JJ, a Division Bench of the Kerala High Court chose to follow the three Judges' decisions in the above cases in preference to the two Judges' Bench decision of the Supreme Court in State of Maharashtra ...

“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-IX]

Justice V Ramkumar

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