Section 27 Recovery Must Satisfy Court's Conscience; Prosecution May At Times Take Advantage Of Custody Of Accused By Other Means : Supreme Court

The Supreme Court has acquitted 4 persons affiliated to the National Development Front(NDF) in a case related to the murder of a member of the Communist Party of India(Marxist)(CPI(M)) in Kerala in 2002. The Court set aside the verdict of the High Court which had reversed the acquittal of these 4 accused by the trial court. At the same time, the Top Court affirmed the conviction of 5 others for murder. To reverse the High Court's conviction of the other 4 accused, the Supreme Court observed that there were discrepancies in the recoveries made by them under Section 27 of the Indian Evidence Act."...we can find a structured pattern in the recovery of A-10 to A- 13. There appears to be some anxiety on the part of the prosecution to make compulsory recoveries", a bench comprising Justices Sanjay Kishan Kaul and MM Sundresh observed in the case Jafarudheen & Ors. v State of Kerala.The Court added that it must be cautious in dealing with Section 27 recoveries as "one cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means".Law relating to Section 27 recoveriesIn the judgment, the bench discussed the law relating to Section 27 recoveries.The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act, 1872. "Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso," the Court said. The bench of Justices SK Kaul and MM Sundresh further said that, "The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act." Section 27 of Evidence Act, 1872 which deals with How much of information received from accused may be proved says that, "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."Here, the Court noted that the some of the mahazar witnesses of Section 27 recoveries as regards Accused 10 to 13 were affiliated to the CPI(M) and were improbable witnesses.Some mahazar witnesses turned hostile. A blood stained dress was said to be recovered after 10 days. "It is improbable that the accused would wear the same dress for more than 10 days with blood stains...", the Court observed. Also, the blood stained dress of another accused was recovered from the hospital. But there was no explanation as to how the dress reached the hospital.Submission Of Counsels Counsel for the accused(s) A-2, A-4, A-5, A-8, and A-9 (whose conviction was affirmed by the High Court) submitted that the FIR was an afterthought created subsequently and was thus ante dated. It was further contended that though the FIR was sent after its registration at about 11.00 p.m., it did reach the jurisdictional Magistrate only at about 4.15 p.m. the next day. Counsel further averred that this delay had not been examined. It was further contended that the witnesses were either interested or chance and, therefore, the courts ought to have rejected their testimonies. Appearing for accused A 10 to A 13 (whose acquittal was reversed by the High Court) Senior Advocate R Basant while referring to the judgement in Mohan @ Srinivas @ Seena @Tailor Seena v. State of Karnataka, 2021 SCC OnLine SC 1233 contended that when after due examination and review of evidence, the Trial Court has passed an order of acquittal, the...

Section 27 Recovery Must Satisfy Court's Conscience; Prosecution May At Times Take Advantage Of Custody Of Accused By Other Means : Supreme Court

Shruti Kakkar

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