Whether “Recovery Evidence” By Itself Is Substantive Evidence

The answer to this question can be in the “negative” in the majority of cases and “positive” in certain limited category of cases. The celebrated Pulukuri Kottaya v. Emporer AIR 1947 PC 67 (Lord Wright, Lord Simonds, Lord Uthwatt and Sir John Beaumont), itself contains the answer to this question. Supposing the accused is having in his possession or is concealing in his room an “unlicensed firearm” or some “narcotic substance”, that by itself is an offence under the relevant penal statutes. Hence, a recovery of any such object or substance on the basis of the disclosure statement of the accused from a place where he has hidden them, would itself establish his complicity. Nothing further need be proved to corroborate the said recovery. But, that is not the position in the majority of cases where the accused merely reveals the place of concealment of the incriminating object. Supposing what he has concealed is only a “dagger”, then the recovery evidence only proves that the accused had hidden the dagger at a secret place. From that alone, it cannot be straightaway concluded that he is the murderer or the culprit. The prosecution will have to further prove that the dagger recovered on the basis of the disclosure statement of the accused, was used by the accused for the commission of the offence. This proof can either be by direct evidence or by circumstantial evidence.

2. Now let us examine the relevant passage in Pulukuri Kottaya. Towards the end of paragraph 11 this is what the Privy Council observed:-

“Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in a manner allowed by law.”

Again towards the end of paragraph 10 of Pulukuri Kottaya, the Privy Council has observed as follows:-

“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.”

This is the reason why the Supreme Court of India has also made the following pertinent observations:-

1. Mere recovery of dead body either pointed out by the accused or recovered as a result of the disclosure statement made by him, would not necessarily lead to the conclusion that he committed murder. There should be other substantive evidence or corroborative circumstances from which the Court can raise a presumption that the accused was the offender. (Vide para 9 of Kanbi Karsan Jadav v. State of Gujarat AIR 1966 SC 821 = 1966 Cri.L.J. 605 – J. L. Kapur, Raghubar Dayal – JJ).
2. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. (Vide para 21 of Mani v. State of Tamil Nadu AIR 2008 SC 1021 – P.P. Naolekar, V. S. Sirpurkar – JJ ).
3. In paragraph 22 of a recent verdict rendered by the Supreme Court on 11-08-2023 in Manoj Kumar Soni v. The State of Madhya Pradesh (Criminal Appeal No: 1030/2023) by S. Ravindra Bhat, Dipankar Datta – JJ, the aforementioned passage in Pulukuri Kottaya has been quoted. In paragraph 21 it is observed as follows:-

“A doubt looms: Can disclosure statements per se, unaccompanied by any supporting evidence, be deemed adequate to secure a conviction? We find it implausible. Although disclosure statements hold significance as a contributing factor in unriddling a case, in our opinion, they are not so strong a piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.”

3. But unfortunately there is a statement in paragraph 16 of Bijinder @ Mandar v. State of Haryana AIR 2022 SC 466 = (2022) 1 SCC 92 – 3 Judges (N. V. Ramana, C.J.I, Surya Kant, Hima Kohli – JJ) as follows:-

“It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material”.

That was a case of robbery and murder in which a few packets of “currency notes” allegedly extorted by the accused, a “red-cloth” on which the name “Kamala” was embroidered and used for wrapping the currency notes, a “pass book” etc. were recovered on the strength of the disclosure statements of some of the accused. Besides such recovery, there was further evidence adduced giving corroboration to the effect that the materials recovered belonged to the first informant. In the backdrop of such a factual scenario, an observation as aforesaid by a three Judge Bench of the Supreme Court without explaining as to how “recovery evidence” can form the sole basis for a conviction, was unwarranted besides misleading. In fact, the law journals have highlighted the above passage which is likely to be misunderstood and can even result in an unmerited conviction based on mere recovery evidence without any corroborative evidence. As mentioned earlier, it is only in those cases where the mere “possession” or “concealment” of the subject-matter of the offence by itself is an offence and such possession or concealment is proved by the recovery evidence, can there be a conviction without any further corroborative evidence.

4. It is to highlight the above distinction that I have taken pains to pen this article so that unmerited acquittals do not take place for want of corroborative evidence besides the recovery evidence in cases where the recovery evidence by itself cannot constitute the sole basis for a conviction.

Author is Former Judge, High Court of Kerala.

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