Pulukuri Kottaya vs King-Emperor on 19 December, 1946
Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown, has argued that in such a case the "fact discovered" is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
Statement made by the accused Inala Sydayya on being arrested. About 14 days ago, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank. We, all beat Boddupati China Sivayya and Subayya, to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Dondapati Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of Venkatanarasu in the village. I will show if you come. We did all this at the instigation of Pulukuri Kotayya.
12th January, 1945. (Signed) POTLA CHINA MATTAYYA.
(") KOTTA KRISHNAYYA.
(Sgd.) G. BAPAIAH, Sub-Inspector of Police.
The whole of that statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" is inadmissible. In the evidence of the witness Potla China Mattayya proving the document the statement that accused 6 said "I Mattayya and others went to the corner of the tank-land. We killed Sivayya and Subayya" must be omitted.
A confession of accused 3 was deposed to by the police sub-inspector, who said that accused 3 said to him:-
I stabbed Sivayya with a spear, I hid the spear in a yard in my village. I will show you the place.
The first sentence must be omitted. This was followed by a Mediatornama, Exhibit Q. 1, which is unobjectionable except for a sentence in the middle, He said that it was with that spear that he had stabbed Boddapati Sivayya," which must be omitted.
The passage in Taylor's Evidence (which is found in paragraph 902 of Volume 1 of 1931 Edition) is as follows:
"902. (i). When, in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement about his knowledge of the place where the property or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is, therefore, competent to prove that the prisoner stated that the thing would be found by searching a particular place, and that it was accordingly so found, but it would not, in such a case of a confession improperly obtained, be competent to inquire whether he confessed that the had concealed it there. So much of the confession as relates distinctly to the fact discovered by it may be given in evidence, as this part at least of the statement cannot have been false."
Supreme Court of India
State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru on 4 August, 2005
The application of the Section is not contingent on the recovery of a physical object. Section 27 embodies the doctrine of Confirmation by subsequent events. The fact investigated and found by the police consequent to the information disclosed by the accused amounts to confirmation of that piece of information. Only that piece of information, which is distinctly supported by confirmation, is rendered relevant and admissible U/S 27. The physical object might have already been recovered, but the investigating agency may not have any clue as to the "state of things" that surrounded that physical object. In such an event, if upon the disclosure made such state of things or facts within his knowledge in relation to a physical object are discovered, then also, it can be said to be discovery of fact within the meaning of Section 27.
The other aspect is that the pointing out of a material object by the accused himself is not necessary in order to attribute the discovery to him. A person who makes a disclosure may himself lead the investigating officer to the place where the object is concealed. That is one clear instance of discovery of fact. But the scope of Section 27 is wider. Even if the accused does not point out the place where the material object is kept, the police, on the basis of information furnished by him, may launch an investigation which confirms the information given by accused. Even in such a case, the information furnished by the accused becomes admissible against him as per Section 27 provided the correctness of information is confirmed by a subsequent step in investigation. At the same time, facts discovered as a result of investigation should be such as are directly relatable to the information.
As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible"." But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to PW11 and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused".
In an earlier paragraph, the Court stressed the need to exercise necessary caution and care so as to be assured of the credibility of the information furnished and the fact discovered.
Joint disclosures Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken.
Joint disclosuresto be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.
In Mohd. Abdul Hafeez vs. State of Andhra Pradesh [AIR 1983 SC 367], the prosecution sought to rely on the evidence that the appellant along with the other two accused gave information to the IO that the ring (MO 1) was sold to the jewellerPW3 in whose possession the ring was. PW3 deposed that four accused persons whom he identified in the Court came to his shop and they sold the ring for Rs.325/- and some days later, the Police Inspector accompanied by accused 1, 2 and 3 came to his shop and the said accused asked PW3 to produce the ring which they had sold. Then, he took out the ring from the showcase and it was seized by the Police Inspector. The difficulty in accepting such evidence was projected in the following words by D.A. Desai, J. speaking for the Court:
"Does this evidence make any sense? He says that accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person".
There is nothing in this judgment which suggests that simultaneous disclosures by more than one accused do not at all enter into the arena of Section 27, as a proposition of law.
Another case which needs to be noticed is the case of Ramkishan vs. Bombay State [AIR 1955 SC 104]. The admissibility or otherwise of joint disclosures did not directly come up for consideration in that case. However, while distinguishing the case of Gokuldas Dwarkadas decided by Bombay High Court, a passing observation was made that in the said case the High Court "had rightly held that a joint statement by more than one accused was not contemplated by Section 27". We cannot understand this observation as laying down the law that information almost simultaneously furnished by two accused in regard to a fact discovered cannot be received in evidence under Section 27. It may be relevant to mention that in the case of Lachhman Singh vs. The State [1952 SCR 839] this Court expressed certain reservations on the correctness of the view taken by some of the High Courts discountenancing the joint disclosures.
The first circumstance is that Afzal knew who the deceased terrorists were. He identified the dead bodies of the deceased terrorists. PW76 (Inspector HS Gill) deposed that Afzal was taken to the mortuary of Lady Harding Medical College and he identified the five terrorists and gave their names. Accordingly, PW76 prepared an identification memoExt.PW76/1 which was signed by Afzal. In the postmortem reports pertaining to each of the deceased terrorists, Afzal signed against the column 'identified by'. On this aspect, the evidence of PW76 remained un-shattered. In the course of his examination under Section 313, Afzal merely stated that he was forced to identify by the police. There was not even a suggestion put to PW76 touching on the genuineness of the documents relating to identification memo. It may be recalled that all the accused, through their counsel, agreed for admission of the postmortem reports without formal proof. Identification by a person in custody of another does not amount to making a statement falling within the embargo of Section 162 of Cr.P.C. It would be admissible under Section 8 of Evidence Act as a piece of evidence relating to conduct of the accused person in identifying the dead bodies of the terrorists. As pointed out by Chinnappa Reddy, J. in Prakash Chand Vs. State (Delhi Admn.) [AIR 1979 SC 400]; "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the EvidenceAct (vide Himachal Pradesh Administration Vs. Om Prakash [AIR 1972 SC 975]).
We have already noticed the distinction highlighted in Prakash Chand's case (supra) between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 Cr.P.C. The evidence of the circumstance, simplicitor, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as 'conduct' under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand's case. In Om Prakash case (supra) [AIR 1972 SC 975], this Court held that "even apart from the admissibility of the information under Section, the evidence of the Investigating Officer and the Panchas that the accused had taken them to PW11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW11 himself would be admissible under Section 8 as 'conduct' of the accused".
Supreme Court of India
Mohmed Inayatullah vs The State Of Maharashtra on 9 September, 1975
The expression "Provided that" together with phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the preceding provisions particularly Secs. 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Sec. 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The Second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya and ors. v. Emperor, Udai Bhan v. State of Uttar Pradesh. Before proceeding further, it is necessary to be clear about the precise statement which had been made by the appellant to the Police officer. This statement finds incorporation in the panchnama, Ex. and we have reproduced an English rendering of the same earlier in this judgment. While considering this statement, the High Court observed that the accused had stated that "he had kept them (drums) there". We have perused the original record of the statement which is in Hindi, and we are of opinion that by no stretching of the words this statement can be so read or construed as has been done by the High Court. The copy Ex. of the Panchnama, in the Paper-book contains a correct English rendering of the same. What the accused had stated was: "I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on first August". It will be seen that he never said that it was he who had deposited the drums at the place from which they were produced. It seems the latter part of the statement which was an outright confession of the theft, was not completely ruled out of evidence and something of it was imported into and superimposed on the first part of the statement so as to fix the responsibility for deposit and possession of the stolen drums there, on the accused.
Having cleared the ground, we will now consider, in the light of the principles clarified above, the application of s. 27 to this statement of the accused. The first step in the process was to pinpoint the fact discovered in consequence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musafirkhana, Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.. Thus processed. in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate and direct cause of the fact discovered. Therefore, this portion only was admissible under Sec. 27. The rest of the statement, namely, "which I took out from the Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused: it was not the distinct and Proximate cause of the discovery and had to be ruled out of evidence altogether.
Supreme Court of India
Bodh Raj @ Bodha And Ors vs State Of Jammu And Kashmir on 3 September, 2002
The words "so much of such information" as relates distinctlv to the fact thereby discovered. are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate, The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If al! that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion: and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken in to custody and becomes an accused. after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact. in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did come from a person not in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. in other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. !t is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any Information obtained from a prisoner. such a discovery is a guarantee that the Information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature but if it results in discovery of a fact. it becomes a reliable information. it is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor AIR (1947) PC 67, is the most quoted authority of supporting the interpretat ion that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see Stale of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) Crl.L.J 2301. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered.'' But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.
Apex Court had to consider the scope of Section 27 of the Evidence Act in K. Chinnaswamy Reddy v. State of Andhra Pradesh . There the appellant was convicted under Section 411 I.P.C. by an Assistant Sessions Judge. He was tried along with another person who was convicted under Sections 457 and 380 I.P.C. A house had been burgled and valuable articles stolen. During the course of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge came to the conclusion that the other accused had actually committed house breaking and had removed the ornaments from the house burgled and had handed over 17 of them to the appellant. He also came to the conclusion that the 17 ornaments recovered .at the instance of the appellant were in his possession and he therefore found him guilty under Section 411 I.P.C. On appeal the Sessions Judge held that the appellant had not been proved to be in possession of the 17 ornaments which were recovered at his instance from a garden. According to the Sessions Judge the full statement of the appellant that "he would show the place where he had hidden them (the ornaments)" was not admissible against him. The Sessions Judge held that the part of the statement of the appellant which related to his having hidden the ornaments was inadmissible. There was a criminal revision to the High Court and re-trial was ordered and it was against that order that the appeal to this Court was directed. Overruling the interpretation of the Sessions Judge, this Court held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under Section 27 of the Evidence Act. It was said :
These words (namely, where he had hidden them) having nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement.
The contention that in a case where the offence consisted of possession even the words "where he had hidden them" would be inadmissible as it amounted to an admission by the accused that he was in possession of them was rejected on the ground that if the statement related distinctly to the fact thereby discovered it would be admissible in evidence irrespective of the question as to whether it amounted to a confession or not. There can be no doubt that the portion of the alleged statement of the appellant extracted by us would be admissible in evidence.The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them " would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place, s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellants would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with the crime, i. e. in this case, the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant (2) as well as of the other accused Who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by. the Sessions Judge, this is, fit case where the High Court would be entitled to set aside the finding of acquittal in revision, though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
Supreme Court of India
Jaffar Hussain Dastagir vs State Of Maharashtra on 11 September, 1969
. Under Section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled.
If an accused charged with a theft of articles or receiving stolen articles, within the meaning of Section 411 I.P.C. states to the police, 'I will show you the articles at the place where I have kept them' and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that 'I will show you the person to whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for 'the place' where the article is kept. In neither case are the articles or the diamonds the fact discovered.
In view of the evidence of Pawri and Mokashi it is not possible to accept the testimony of Gaud. It is incredible that Guad who had gone to the newspaper office specially for the purpose of finding out whether anybody had approached the newspaper people to surrender the diamonds would not ask Pawri in detail about the persons who had met him or what they had told him or what they had done about the publication of the finding of the diamonds. Pawri's definite statement was that he had told the police all that had happened in the morning. In our view, Pawri must have shown Gaud the advertisement material, the covering letter with the card and the names of the two persons and the address of one of them. He could not possibly have failed to tell Gaud that the two persons who had come to him had even offered to hand over the diamonds. There is no positive evidence as to whether Gaud had asked the Bombay Samachar people not to insert the advertisement on the morning of the 11th. But nothing turns on that. It was 11.0'clock in the morning when Parekh and accused No. 3 had gone to the newspaper office and it was about 3 in the afternoon that Gaud met Pawri for the purpose of making enquiries. Gaud's statement that Pawri had given him Parekh's address from memory cannot be accepted. Besides it is absurd to suggest that Gaud would not have asked Pawri to show him the documents made over by Parekh and accused No. 3 or that there would have been any reluctance on the part of Pawri to tell Gaud H about it when he knew that the police were making investigations about a packet of diamonds picked from the pocket of someone who had lodged a complaint with the police.
In our; view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds. Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would not be something unknown to the police so as to constitute "a fact deposed to as discovered in consequence of the information received" from the appellant. The discovery, if any, merely related to the whereabouts of accused No. 3. There was no discovery of any fact deposed to by the appellant within the meaning of Section 27. If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3.
In the result although the statement might otherwise have been admissible in evidence, that there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of Section 27 of the Evidence Act because the police already knew that the third and or the fourth accused had the diamonds. The appeal must be allowed and the appellant directed to be set at liberty.
Supreme Court of India
State Of Karnataka vs David Razario And Anr on 17 September, 2002
The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. V. Balakrishan (AIR 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (AIR 1976 SC 483). The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [see State of Maharashtra v. Danu Gopinath Shirde and Ors. (2000) Crl.LJ 2301]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.
Supreme Court of India
Suresh Chandra Bahri vs State Of Bihar on 13 July, 1994
Most often and in certain cases even the dead body of the deceased person is not recovered or seized but if there is positive evidence to connect the culprit, it cannot be said that the offence of murder is not established.
In Nari Santa case - the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar case , also does not help the appellants in the present case. In the case of Abdul Sattar - recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrence from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing the Khad gaddha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles.
Supreme Court of India
Himachal Pradesh Administration vs Shri Om Prakash on 7 December, 1971
In the Full Bench judgment of seven Judges in Sukhan v. The Crown -, which was approved by the Privy Council in Pulukuri Kotayya's case - Shadi Lal, C.J., as he then was speaking for the majority pointed out that the expression 'fact' as defined by Sec. 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the 'cause and effect'. That information which does not distinctly connect with the fact discovered or that portion of the information which merely explains the material thing discovered is not admissible under Sec. 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Sec. 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the, crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen' 'property or other in eliminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What 'Makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the. information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the- information which disclosed the identity of the witness will not be admissible. But even apart from- the admissibility of the information under Sec. 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to P.W. 11 and pointed him out and as corroborated by P.W. 11 himself would be admissible under Sec. 8 .
Supreme Court of India
Dudh Nath Pandey vs The State Of U.P on 11 February, 1981
Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon weilded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where the weapon was kept. The evidence of the Ballistic expert carries the proof of the charge a significant step ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo was fired from the pistol which was pointed out by the appellant.
Supreme Court of India
Makhan Singh vs State Of Punjab on 27 July, 1988
-Recovery of from open field-Held, exclusive knowledge cannot be attributed to the accused-Consequently evidence under s. 27 cannot be a circumstance against the accused.
As regards the recovery of dead bodies, the investigation officer himself admitted that after recording the statement of PW. 3 he knew that the bodies were buried in the field but he felt that information was not sufficient. The said field is an open place surrounded by other fields. It cannot be said that any one else could not have known about the bodies being buried there. Since exclusive knowledge to the appellant cannot be attributed, the evidence under s. 27 of the Evidence Act also cannot be said to be a circumstance against the appellant According to the medical opinion, bodies were recovered about three months after the death. The bodies were found disintegrated. It was difficult to identify. The disintegration had gone to such an extent that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem. The prosecution did not examine any one of the relatives or the daughter of deceased or his son-in-law to identify the dead bodies although it has appeared in evidence that during the trial the said son-in-law was present in the Court. As regards recovery made from the Kotha where the deceased used to reside, there is nothing significant. Their belonging were found to be there and on that basis no inference could be drawn against the appellant.
Supreme Court of India
State Of Maharashtra vs Damu S/O Gopinath Shinde And ... on 1 May, 2000
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of Privy Council in Pullukurri Kottayya vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
Supreme Court of India
Vikram Singh & Ors vs State Of Punjab on 25 January, 2010
Mr. A.Sharan, the learned senior counsel for the appellants has made his submissions under three broad heads; one, that the chain of circumstances and the links in the prosecution evidence were not complete, the moreso, as all the witnesses were not only chance witnesses but also related to or associates of Ravi Verma, second that the recoveries made at the instance of the appellants under Section 27 of the Evidence Act could not be taken into evidence as it was the case of the prosecution itself that the appellants had been taken into custody at about 8 p.m. on 15th February 2005 whereas the recoveries had been made on 14th February 2005.
A bare reading of the provision would reveal 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 essential that such an accused must be under formal arrest. In State of Uttar Pradesh vs. Deoman Upadhyaya AIR 1960 SC 1125 this is what a Constitution Bench had to say while examining the scope and applicability of Section 27. The Bench relying on the observations made by the Privy Council in Narayan Swami vs. Emperor ( AIR 1939 PC 47) observed as under:
"Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions i.e. of statements made by a person stating or suggesting that he has committed a crime. By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in Section 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. Emperor by the Judicial Committee of the Privy Council, "Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" "is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides. "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against a person accused of any offence". By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states "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". The expression, "accused of any offence" in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety."
Supreme Court of India
State Of U. P vs Deoman Upadhyaya on 6 May, 1960
Persons not in custody making statements to the police leading to discovery of facts were a possible but rare class. A person who approaches a police officer investigating an offence and offers to give information leading to the discovery of an incriminating fact must be deemed to have surrendered himself to the police and to be in custody within the meaning of S. 27 of the Indian Evidence Act. A law which makes provision for cases where the need is most felt cannot be struck down because there are other instances to which it might have been applied. The object of the legislation being both to punish offenders proved to be guilty and to protect persons who may be compelled to make confessional statements, the provisions of S. 27 are reasonable as they make information admissible on the ground that the discovery of a fact pursuant to the statement made by a person in custody is a guarantee of the truth of that statement.
The expression " a person accused of any offence " in s. 27 is merely descriptive of the persons against whom evidence is sought to be led in a criminal proceeding. It is not necessary that the person should have been accused of an offence at the time when he made the statement leading to the discovery of a fact.
Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer. But in considering whether a statute is unconstitutional on the ground that the law has given equal treatment to all persons similarly circumstanced, it must be remembered that the legislature has to deal with practical problems; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been but is not applied. As has often been said in considering whether there has been a denial of the equal protection of the laws, a doctrinaire approach is to be avoided. A person who has committed an offence, but who is not in custody , normally would not without surrendering himself to the police give information voluntarily to a police officer investigating the commission of that offence leading to the discovery of material evidence supporting a charge against him for the commission of the offence.
in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar culled out the rules of construction of the equality clause in the context of the principle of classification from the various decisions of this Court and those of the Supreme Court of the United States of America and restated the settled law in the form of the following propositions at pp. 297298:
" (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.
Shortly stated, the section divided the accused making confessions or statements before the police into two groups:
(i) accused not in custody of the police, and (ii) accused who are in the custody of the police. In the case of the former there is a general bar against the admissibility of any confessions or statements made by them from being used as evidence against them; in the case of the latter, so much of such statements or confessions as relates distinctly to the fact thereby discovered is made admissible.
Shorn of the verbiage, let us look at the result brought about by the combined application of s. 27 of the Evidence Act and s. 162 of the Code of Criminal Procedure. A and B stabbed C with knives and hid them in a specified place. The evidence against both of them is circumstantial. One of the pieces of circumstantial evidence is that both of them gave information to the police that each of them stabbed C with a knife and hid it in the said place. They showed to the police the place where they had hidden the knives and brought them out and handed them over to the police; and both the knives were stained with human blood. Excluding this piece of evidence, other pieces of circumstantial evidence do not form a complete chain. If it was excluded, both the accused would be acquitted; if included, both of them would be convicted for murder. But A, when he gave the information was in the custody of police, but B was not so. The result is that on the same evidence A would be convicted for murder but B would be acquitted : one would lose his life or liberty and the other would be set free. This illustration establishes that prima facie the provisions of s. 27 of the Evidence Act accord unequal and uneven treatment to persons under like circumstances.
Section 161 of the Code of Criminal Procedure empowers a police officer of stated rank to examine orally any person supposed to be acquainted with the facts and circumstances of the case. Such person is bound to answer all questions relating to the case but not questions which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The police officer may make a written record of the statement. Section 163 of the Code then lays down the rule that no police officer or other person in authority shall offer or make, or cause to be offered or made, any inducement, threat or promise as is mentioned in the Indian Evidence Act, s. 24 and further that no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation any statement which he may be disposed to make of his own free will. Section 162 of the Code then makes statements reduced into writing inadmissible for any purpose except those indicated, but leaves the door open for the operation of s. 27 of the Indian Evidence Act. Section 164 confers the power to record confessions, on Magistrates of stated rank during investigation or at any time afterwards before the commencement of the enquiry or trial. Such confessions are to be recorded after due caution to the person making the confession and only if there is reason to believe that they are voluntary. Section 46 of the Code provides that in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. When an offence is committed and investigation starts, the police have two objects in view. The first is the collection of information, and the second is the finding of the offender. In this process, the police question a number of persons, some of whom may be only witnesses and some who may later figure as the person or persons charged. While questioning such persons, the police may not caution them and the police must leave the persons free to make whatever statements they wish to make. There are two checks at this stage. What the witnesses or the suspects say is not be used at the trial, and a person cannot be compelled to answer a question, which answer may incriminate him. It is to be noticed that at that stage though the police may have suspicion against the offender, there is no difference between him and other witnesses, who are questioned. Those who turn out to be witnesses and not accused are expected to give evidence at the trial and their former statements are not evidence. In so far as those ultimately charged are concerned, they cannot be witnesses, save exceptionally, and their statements are barred under s. 162 of the Code and their confessions, under s. 24 of the Indian Evidence Act. Their confessions are only relevant and admissible, if they are recorded as laid down in s. 164 of the Code of Criminal Procedure after due caution by the Magistrate and it is made clear that they are voluntary. These rules are based upon the maxim: Nemo tenetur prodere seipsum (no one should be compelled to incriminate himself):
" Neither Judge, magistrate nor juryman, can interrogate an accused person...... or require him to answer the questions tending to incriminate himself. Much less, then ought a constable to do so, whose duty as regards that person is simply to arrest and detain him in safe custody."
In English law, the statement of an accused person can be tendered in evidence, provided he has been cautioned and the exact words of the accused are deposed to. Says Lord Brampton:
" There is, however, no objection to a constable listening to any mere voluntary statement which a prisoner desires to make, and repeating such statement in evidence, nor is there any objection to his repeating in evidence any conversation he may have heard between the prisoner and any other person. But he ought not, by anything he says or does, to invite or encourage an accused person to make any statement, without first cautioning him, that he is not bound to say anything tending to criminate himself, and that anything he says may be used against him. Perhaps the best maxim with respect to an accused person is 'Keep your ears and eyes open, and your mouth shut '
" A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it."
Supreme Court of India
State Of Himachal Pradesh vs Jeet Singh on 15 March, 1999
There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows were it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
Supreme Court of India
Nisar Khan @ Guddu And Ors. vs State Of Uttaranchal [Alongwith ... on 25 January, 2006
Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17.12.1999 and pursuant to a disclosure statement made by them, the arms sere recovered from the bank of Gaula river where these have been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee alias Dhana v. State of West Bengal , it is held that entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
In the case of Gola Konda Venkateswara Rao v. State of A.P. , this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place. Even though the discovery statement and the recovery memo did not bear the accused's signature. The fact of recovery from the well and dug out from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given fortified and confirmed by the discovery of the wearing apparel and skeletal remains of the deceased and, therefore, the information and statement cannot be held false. In the present case on the recovery memo the signatures of all the accused have been obtained. In the case of Praveen Kumar v. State of Karnataka 2003(12) SCC 199, the same view has been reiterated.
As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointing out by each of the accused.
Supreme Court of India
Abuthagir & Ors vs State Rep.By Inspector Of ... on 8 May, 2009
Section 27 of the Indian Evidence Act, 1872 (in short the `Evidence Act') deals with discovery. The same reads as follows:
"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."
In the instant case the following documents were relied upon:
1. Bakkim Lodge record.
2. Handwritings of first and third appellants in the registers.
3. Impersonation as Kumer and David.
The evidence of PWs 10, 19 and 22 clearly proved the aforesaid recoveries and discoveries. Apart from that there has been recovery of the material objects. The investigator was able to locate the STD booth from where the accused talked with others. This also is an important factor which was discovered at the instance of known accused persons.
Supreme Court of India
Asar Mohammad . vs The State Of Uttar Pradesh on 24 October, 2018
The Supreme Court has observed that the word “fact” as contemplated in Section 27 of the Indian Evidence Act is not limited to “actual physical material object”, and it includes mental awareness or the knowledge of the accused as to its existence.
The Court was considering the appeal filed by Asar Mohamad and others. Asar and Asraf are sons of Akthar Mohammad. He had another wife named Zahida and a son named Ishlam. The case relates to the murder of Zahida and Ishlam. During the course of investigation, Asar had confessed to the police that he, along with his brother and father, committed murder of both Zahida and Ishlam and thereafter, dumped their dead bodies into the septic tank in the backyard of their house. All the accused were convicted by the trial court, which was later confirmed by the high court.
The bench comprising Justice AM Khanwilkar and Justice L Nageswara Rao confirmed the concurrent conviction on the accused (Asar) and after referring to judgment in Vasanta Sampat Dupare v. State of Maharashtra, said: “It is a settled legal position that the facts need not be self probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence.”
“After perusing the entire evidence and taking the totality of the proved circumstances into account, we are in agreement with the conclusion reached by the trial court, which came to be affirmed by the High Court, regarding finding of guilt against appellant No.1 – Asar Mohammed, who had confessed to the police and also led the police party to the place where the dead bodies were dumped,” the court added.
The bench, however set aside the conviction recorded against the co-accused observing that confession of one accused by itself cannot be the basis to proceed against the other accused unless something more is produced to indicate their involvement in the commission of the crime. The bench acquitted them of murder charges as there were no substantive evidence to prove their involvement. Their conviction under Section 201 IPC is sustained.
Supreme Court of India
Mousam Singha Roy & Ors vs State Of West Bengal on 21 August, 2003
At this stage, it will be relevant to discuss the recoveries of a letter and a book by the prosecution which according to the prosecution establishes the further motive for murder. In this regard, the prosecution relies on the evidence of PW-35 Barun Polley and PW-36 Subhro Sen to establish the fact that letter Ex. V allegedly written by accused Mousam to accused Vikky was recovered from the house of Vikky, while PW-16 Sukamal Dutta and PW-17 Chiranjib Das were examined for the purpose of proving the recovery of exercise book (khata) from the house of accused Mousam. Prosecution has also relied upon the evidence of handwriting experts and the forensic laboratory personnel to establish the fact that the letter was in the handwriting of the accused and the pages on which the said letter was written were removed from the exercise book belonging to Mousam. The defence has seriously challenged the recovery contending that the recoveries were not proved as required in law. That apart, the learned counsel for the appellants also attacked the prosecution case as to the handwriting of A-1 in the letter as also the legality of obtaining specimen handwriting by the Police during the investigation. We do not think it is necessary for us to go into all these arguments because after examining the evidence of Panch witnesses to the recoveries, we think the prosecution has not established the recovery of the exercise book from the house of Mousam, A-1 as also the letter from the house of Vikky, A-5. A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O.. From their evidence it is noticed that in the case of the book, the I.O. went inside the house of A-1 and came out with the book. Admittedly, these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spoken about the fact that the I.O. came out of the house with the book and told them that he recovered it from the room of Mousam, A-1. Almost similar is the evidence of PWs.35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky, A-5. These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/house and came out with the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousam, A-1 had signed the recovery Panchnama in regard to the exercise book or mother of A-3 had signed the Panchnama for the recovery of letter from the house of A-5 is of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.
Supreme Court of India
State Of Madhya Pradesh vs Kriparam on 25 September, 2003
As noticed above the prosecution has also relied on certain recoveries made at the instance of A-1. Firstly it is stated that the blood stained clothes worn by the accused at the time of arrest were seized by the police . In regard to the place from where these were seized , there is contradiction as to whether it was taken off from the person of A-1 or was taken from a place where the clothes were kept in his house. Be that it may the prosecution case is that these clothes were blood stained though washed, still the stains were visible hence was sent to chemical examination which has established the stains were of blood. Therefore the same was sent to Serologist who opined that he could not give an opinion as to the origin of the blood meaning thereby the blood stain that was noticed by him on the clothes cannot be said to be that of human origin. In such situation this circumstance of recovery of blood stained clothes will be of no assistance to the prosecution. Similar is the case in regard to recovery of an axe. In regard to this, witnesses for the recovery say they found small stain of blood on it. The serologist in regard to this blood also states that it is not possible to find out the origin of the same. Therefore, even this recovery would not in any manner help the prosecution in this case.
Even otherwise if the prosecution case in regard to Pws. 1& 3 are not acceptable then these recoveries by themselves would not take the prosecution case any further.
Supreme Court of India
Praveen Kumar vs State Of Karnataka on 15 October, 2003
the most important circumstance relied on by the prosecution is that of recovery of part of the gold ornaments at the instance of the appellant himself from a place near his house in Uppinangadi, and recovery of a stolen gold chain belonging to the victims which was pledged on 28.2.1994 (4 days after the incident) by the accused with a financing firm at Uppinangadi which was seized under Mahazar P-8. These recoveries of ornaments either at the place where they were hidden or from the firm to which it was pledged has been established by the prosecution through their Mahazar document P-6 and 8 and by the evidence of Panch witnesses PWs.10 and 12 who are independent persons having no enmity whatsoever against the appellant out of whom it is worthwhile to note that PW-10 is a doctor. This fact of the ornaments belonging to the victims being in the constructive possession of the appellant immediately after the murder leads to an inference in the absence of any explanation that the appellant must have robbed these jewelleries from the victims and in that process committed the murders of the victims. [See: Gulab Chand v. State of M.P. and Sri Bhagwan v. State of Rajasthan ].
Section 27 does not lay down that the statement made to a Police Officer should always be in the presence of independent witnesses. Normally in cases where the evidence led by the prosecution as to a fact depends solely on the Police witnesses, the courts seek corroboration as a matter of caution and not as a matter of rule. Thus it is only a rule of prudence which makes the court to seek corroboration from independent source, in such cases while assessing the evidence of Police. But in cases where the court is satisfied that the evidence of the Police can be independently relied upon then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. In the instant case nothing is brought on record to show why evidence of PW-33 I.O. should be disbelieved in regard to the statement made by the accused as per Ex. P-35. Therefore, the argument that statement of the appellant as per Ex.P-35 should be rejected because the same is not made in the presence of independent witness has to be rejected.
Supreme Court of India
Khujji @ Surendra Tiwari vs The State Of Madhya Pradesh on 16 July, 1991
In `Himachal Pradesh Administration v. Om Prakash,'  2 SCR 765 Apex Court observed at page 777 that it could not be laid down as a matter of law and practice that where recoveries have 'been effected from different places on the information furnished by the accused, different sets of persons should be called in to witness them. There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. It is, therefore, clear from the decision of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the clothes of the appellant and his companions, PW5's evidence could not be discarded since nothing had surfaced in cross- examination to shake his evidence. We are, therefore, satis- fied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. We make limited use of this evidence in the sense that we do not use any part of the evidence admissible under section 27. Evidence Act, against the appellant. We merely use the factum of find of the incriminating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood-like stains were noticed thereon. These articles were sent to the Chemical Analyser and Serologist for examination and report. As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. The appellant has not offered any plausible explanation for the existence of human blood on his pant. This too is a circumstance against the appellant particularly because no injury was noticed on the person of the appellant.
Modan Singh v/s State of Rajasthan Decided On, 31 August 1978
The only other material on which the prosecution can connect the appellant with the crime is the recovery of the fired cartridge, Ex. 9 and the seizure of the pistol Ex. 8 and the deposition of the ballistic expert, PW 9. It is found that the witnesses who have been examined for attesting the seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the village and their not supporting the recovery would be fatal to the prosecution. We would rather not place any reliance on the witnesses who attested the seizure memo. If the evidence of the investigation officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. According to the investigating officer, PW 12, he recovered a live cartridge lying on the ground towards the head of the cot wherein the dead body was found lying and an empty cartridge lying near the cot of that room. The recovery memo was marked Ex. P-14. The recovery of the pistol, Ex. 8 from the person of Modan Singh was on December 20, at the police station itself and the recovery memo is Ex. P-23. An empty cartridge, a live cartridge and a pistol case were recovered from the house of Modan Singh on the 23rd and the seizure memo was prepared but the prosecution failed to lead evidence that the material objects were properly kept till they were sent to the expert on February 6, 1967 by a special messenger. The investigation officer would only say that the material objects were kept sealed up to December 14, 1966. The prosecution is silent as to in whose custody the material objects were till February 6, 1967. Added to all these infirmities, we find that the ballistic expert, PW 9 had in his report, Ex. P-25 stated as follows :The fired cartridge has been marked C/1 by me. It had been fired from the pistol under reference. The barrel of the pistol is loose for .303 bullets and hence, reliable markings on the test bullets could not be obtained. Therefore, the bullets mentioned above could not be identified in respect of the weapon under reference.
Supreme Court of India
Rammi Alias Rameshwar vs State Of Madhya Pradesh on 21 September, 1999
Regarding the recovery of weapons, the prosecution could utilize statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood-stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which accused had furnished to the police officer and which led to the recovery of the weapons.
True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused.
Supreme Court of India
Bhimappa Jinnappa Naganur vs State Of Karnataka on 25 February, 1993
If we take the statement of PW. 1 for its face value the deceased died within a couple of minutes of his coming out of the court-yard after finishing his mid day meal. It is clear from the postmortem report as well as the statement of the doctor PW. 6 that the deceased could not have consumed his lunch at the time as stated by PW. 1. In other words the incident must have been of a period much before the time as alleged by the prosecution. This was the main reason which persuaded the trial court to disbelieve the prosecution version in toto. Besides, we also notice that as to the disclosure statement which lead to the recovery of the axe (MC-9) the only witness examine is Ramu Mellappa, PW. 13. He did not depose about witnessing to the disclosure statement which led to the recovery-of axe. The only evidence regarding the disclosure is "come with me" and thereafter the accused proceeded towards Harugeri and stopped near the stream situated at a distance of about 2 Kms. away and the accused took out the axe from inside the nallah (stream). In the absence of any disclosure statement the recovery of axe itself become meaningless.
Supreme Court of India
Chandran Alias Surandran And ... vs State Of Kerala on 28 August, 1990
A moral conviction, however, strong or genuine cannot amount to a legal conviction supportable in law.... It must be realised that the well established rule of criminal justice is that 'foulder the crime higher the proof.
On a careful scrutiny of the evidence with regard to the recoveries of MOs 1 to 3, we are least impressed with the version of the prosecution that these recoveries clingingly establish the guilt of the first appellant. Be it noted that none of the recoveries was made in pursuance of any statement of the second appellant.
The next circumstance adduced by the prosecution is the evidence relating to the presence of the finger prints of the two appellants on two glass pieces (MOs 22 and 23) which were found scattered at the scene.
PW-30, the finger print expert on receipt of a message from the Inspector of Police examined the articles laying scattered at the scene of the occurrence and found the two broken glass pieces (MOs 22 and 23) containing portion of finger and palm prints. He developed the finger prints for comparison and kept them in the finger print bureau, Cannanore. It is in the evidence of PW-33 that on 11.5.86, the finger print and palm print of A-1 and A-2 were taken by a police, constable of Kumbala Police Station under his direction and they were sent to PW-30 on 12.5.86 for comparison. PW-30 compared those two finger prints which were developed from MOs 22 and 23 with the finger prints of A-1 and A- 2(marked as Ex. P-21 and 20 respectively) sent by PW-33 and gave his opinion that one of the finger prints found in one of the glass pieces was identical with the right palm print of A-2 and the finger print found on the other glass piece tallying with the thumb impression of A-1. The explanation given by both the appellants in their statements recorded under Section 313 Cr. P.C. is that their finger prints were obtained by the police on two glass pieces under coercion.
It is very strange that only two broken glass pieces among others recovered from the scene of occurrence contained two finger prints tallying with the finger prints of A-l and A-2 respectively. According to PW-33, he got information about the arrest of the appellants by Karnataka Police on 28.2.86 and got the custody of the appellants on 25.4.86 which was extended for some more days. Then he obtained the custody of the second appellant on 2.5.86. Though both the appellants were in the police custody on or about 2.5.86, PW-33 thought of taking their finger prints only on 11.5.86. The purpose for which the two appellants were taken to the police custody is not known. It seems that nothing has been recovered from any of the appellants after they have been taken to the police custody.
At the risk of repetition, we may state at this juncture that the explanation offered by the two appellants for the presence of the finger prints on MOs 22 and 23 is that their finger prints were taken on the two glass pieces under compulsion. The non-explanation for taking these two appellants into police custody long after their arrest leaves an impression that all are not well with the prosecution.
Supreme Court in State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 found the recovery of a blood stained grinding stone from tall grass from a place very close to the house of the accused/respondent not to be from an open place as "[u]ntil they were disinterred, at instance of Respondent, their hidden state had remained unhampered."
In Ibrahim Musa Chauhan @ Baba Chauhan v. State of Maharashtra, 2013 (3) SCALE 207 the Supreme Court found the recovery of a plastic bag containing hand grenades from a heap in which lay broken tiles was not from an open place. The relevant portion reads as under:
"133. Undoubtedly, the appellant's disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden."
In a recent judgment, a coordinate bench of Delhi High Court, in Jite v. State, MANU/DE/ 1791/2017 had repelled the submission that the recovery of the weapon of offence, i.e. dagger, was doubtful as being recovered from a park allowing access to the public in general, by finding that as the dagger was concealed in a heap of construction material and the same was recovered on the very next day, it could not be said to have been effectuated in an open and accessible place.
Delhi High Court
Dinesh Kumar Mathur vs State on 16 August, 2017
The judgment of this Court in Shiv Narayan v. State also does not come to the aid of the appellant Raju as the knife in that case was recovered from an open plot adjacent to the factories, the knife was not buried or concealed under the earth or inside the bushes. Further the knife was lying in the open on the ground and was visible to naked eyes even during the night. The recovery was also effected after about 23 days from the occurrence of the offence. In such circumstances, it was held that the accused did not have exclusive knowledge of the location of the knife and hence, hit by Section 27 of the Evidence Act. In the present case, we have already held that the blade of the darati was concealed by the appellant Raju inside the kabristan amongst the roots of a bargad tree inside a polythene. The relevant portion of Shiv Narayan (Supra) is quoted below: